The Golden Rule was introduced by the case of Kenward v Adams 1975 during which it was said that where a testator (the person making the Will) is elderly or ill, the Will ought to be witnessed or approved by a medical practitioner who is satisfied of the testator’s capacity and understanding of the Will. The medical practitioner must then record their examination and findings.
Most often, this would be relevant where someone has been diagnosed with dementia or has been deemed to lack mental capacity to manage their own financial affairs. However, it might be that the lawyer preparing the Will has doubts as to the testator’s testamentary capacity (capacity to make a Will) or the person making the Will is giving unusual or controversial instructions i.e. they wish to leave a child out of the Will.
The Golden Rule is not a legal rule, but a guide as to ‘good practice’ that is given significant weight by the legal profession. This can be seen in the subsequent case of Ashkettle v Gwinnett 2013 where it was suggested that a Will is not guaranteed to stand up in court simply because a solicitor was involved in its preparation.
Following The Golden Rule
Adhering to the Golden Rule can be difficult – some clients can feel offended at the suggestion that their capacity needs to be assessed before a Will can be prepared for them. In addition, these assessments by medical practitioners need to be paid for, so the additional cost needs to be taken into account.
Whilst following the Golden Rule provides no guarantee that the Will won’t be challenged successfully, it does mean that those challenging the Will should find it much more difficult to prove lack of testamentary capacity, if a proper medical assessment has been undertaken.
Timing is also important to ensure that the medical assessment is received without delay and as near to the signing of the Will as possible.
Some agencies are offering to carry out virtual capacity assessments but the validity of these have not yet been tested in the Courts and many lawyers are wary of relying on a virtual assessment.
The Golden Rule can also be used to emphasise the importance of making a Will when you are fit and capable of doing so.
Next Steps...
If you have any concerns, or if you would like information regarding Wills then please contact me at legal@timms-law.com or call freephone 0800 011 6666.
Alternatively, visit the Wills and Probate section of our website.
