Capacity and the ‘Golden Rule’

Although the golden rule is guidance and good practice for lawyers, it is also useful for clients to understand a solicitor's role in preparing Wills and the need to use a properly qualified solicitor. It is really important to consider getting your affairs in order when everything is fine and not if/when something happens!

Capacity is an issue which can be difficult to establish and is rarely black or white where illness and age are factors, but trying to establish it retrospectively once a person has died, is even more difficult.

In recent cases, the courts have been cautious in providing too much weight to the evidence of a medical professionals who have never met a testator before, over the evidence of an experienced solicitor, instructed by the testator. But without contemporaneous notes and a proper consideration of capacity, in each any every case, regardless of complexity, this may be all the court has at their disposal in an estate dispute.

The 'Golden Rule' was established in the case of Kenward v Adams [1975] and essentially means that where there is any doubt as to the testator's capacity, due to age or infirmity/illness, to execute a Will, then a medical expert's opinion, should be sought, preferably from the testators own GP. Where possible, the medical expert should be asked to witness the Will or provide written confirmation of the testator's capacity to execute it.

The Golden Rule has been upheld and clarified in many later cases, in particular in 1977 in the case of Re Simpson where dementia was deemed to be an illness within the remit of the rule, like many others, where caution should be exercised. The Golden Rule acts a good practice and not by operation of law, but ultimately can assist in preventing a dispute before it's even begun.

The test for capacity to execute a Will is long established in the case of Banks v Goodfellow (1870) and has been upheld in multiple cases over the years. It is still considered good law today. It is the test in Banks v Goodfellow and not the capacity test set out in the more recent Mental Capacity Act 2005, which should be applied by solicitors when assessing the capacity of each and every testator executing a Will and when there is doubt as to capacity for what ever reason, the Golden Rule then suggests further assessment is sought.

Whilst it is not always the easiest thing to suggest to a testator that there are concerns over their capacity, the benefit of having had the uncomfortable conversation and completing the assessment is, that there is far less likely to be any dispute, let alone a successful one, in the future.

The very recent case of Clitheroe v Bond 2020 shows how two different experts looking retrospectively at the same issues and evidence, can come to two very different conclusions on the capacity of the testator. In this case the decision was wide open for the court to weigh up the differing opinions and other evidence.

The court concluded in Clitheroe v Bond that the burden on the executor to show capacity was not any issue had not been discharged and ruled that the testatrix had been suffering from a disorder of the mind at the time of executing her Wills, in 2010 and 2013 and it ruled that she died intestate. The estate ultimately will now be divided equally between her two children; instead of being dealt with in accordance with the terms of either one of the two Wills.

Whilst obtaining additional support, by way of a capacity assessment, keeping careful notes and wherever possible taking instructions and supervising execution of a Will face to face, is not absolutely full proof and will not guarantee that challenges and disputes wont arise, it will certainly be easier to argue that a Will, should be valid where there is lifetime evidence to show best practices were followed at the time.

At Rollits, our expert team has years of experience helping clients to secure their assets for their loved ones. Call us now to discuss making a new Will or to update your exisiting Will.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.