What Is The Golden Rule?

In her latest blog, Head of Wills & Probate Jo Robinson talks about the ‘Golden Rule’; what it is, following it and the Golden Rule and Covid-19…..

The Golden Rule emerged from the case of Kenward v Adams 1975 during which Mr Justice Templeman said that where a testator (the person making the Will) is elderly or has been ill, the Will ought to be witnessed or approved by a medical practitioner who is satisfied of the capacity and understanding of the testator and then goes on to record this examination and finding.

In some cases, this may be an obvious requirement, for example if the testator has dementia or has been deemed unable to manage their financial affairs, or if the lawyer preparing the Will has doubts as to the testator’s testamentary capacity. In reality though, the Golden Rule covers all clients who have a serious illness or are merely ‘aged’.

The Golden Rule is not a legal rule as such, but rather a rule of good practice that is given significant weight. 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 be assessed before a Will is prepared for them, especially if they are fit and well despite their great age. There is also the cost of the report to consider.

A huge degree of tact is therefore required, and it is important to explain to clients that following the Golden Rule is incredibly important from a legal standpoint. Whilst following the rule provides no guarantee against the Will being challenged successfully, it does mean that those challenging the Will will find it much more difficult to prove lack of testamentary capacity if a proper medical assessment has been undertaken and a doctor witnesses the Will.

Further, even if a lawyer does instruct a medical practitioner, case law puts the onus on the lawyer to ensure that the capacity assessment is carried out in a timely manner. Simply instructing a medical practitioner is not enough. In the case of Feltham v Bouskell, the Court ruled that the five week period between the solicitor instructing the GP and receiving the report was too long and the solicitor should have pursued the report after ten days. The solicitor’s failure to do so was deemed to be negligent.
That is one of the reasons why lawyers carry out regular reviews of their files to ensure that nothing is missed!

The Golden Rule And Covid

The effects of the pandemic are far reaching when it comes to following the Golden Rule. Many medical practitioners are refusing to see clients to carry out capacity assessments and many care homes are on lockdown.

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.

Conclusion

I would like to conclude by reiterating the importance of making a Will whilst you are fit and healthy and less ‘aged’.

For further information regarding the issues raised in this article then please telephone me on 01332 364436 or e-mail me at j.robinson@timms-law.com.

Jo Robinson
October 2020