What is the Golden Rule in Wills? Meaning, Case Law & Guidance

The Golden Rule is a well-established principle in Wills and Probate, first set out in Kenward v Adams (1975).

It is not a legal requirement, but a widely recognised guideline of good practice designed to help ensure that a Will is valid and less likely to be challenged.

What is the Golden Rule?

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.

When Does the Golden Rule Apply?

Most often, the Golden Rule would be relevant where someone is elderly or 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 complex or unusual or controversial instructions i.e. they wish to leave a child out of the Will.

Testamentary Capacity Explained

The test for capacity is set out in the case of Banks v Goodfellow and means that you must be able to:

• Understand the nature of making a Will and its effects.
• Understand the extent of the property of which you are disposing.
• Be able to comprehend and appreciate any claims that may be brought against your estate.
• You must also have no disorder of the mind that perverts your sense of right or prevents the exercise of your natural faculties in disposing of your property by Will.

Is the Golden Rule a Legal Requirement?

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. There was emphasis that a solicitor’s view on a client's capacity ought to be based on a proper assessment and accurate information to be of value. If a doubt is raised, the burden of proof shifts to the person seeking to uphold the will to demonstrate that the testator had capacity.

Therefore, a person seeking to make a Will via a Solicitor should realise that a Solicitor may well insist on a capacity test, even if it does not sit well with the client.

Solicitors will also be wary of other people trying to make appointments on behalf of another to either make a Will or change a Will’s contents. It is always best practice for the person wishing to make a Will to arrange the appointment themselves.

Challenges and Practical Difficulties of the Golden Rule

Adhering to the Golden Rule can therefore 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. It is now proving even more difficult in today’s environment to be able to obtain an assessment from a local GP. There are however some experts who are willing to prepare capacity reports within a scheduled framework.

If you have concerns about mental capacity when making or updating a Will, seeking early legal advice can help avoid disputes later on. Our team would be more than happy to help and can be contacted on freephone 0800 011 6666 or at legal@timms-law.com.

Practical Importance of Timing

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. This is because there is a risk of capacity fluctuating over time.

Does Following the Golden Rule Prevent Will Challenges?

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.

It improves legal defensibility of the Will, reduces a litigation risk, gives stronger professional compliance and greater clarify for executors and beneficiaries.

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.

Inheritance disputes in England and Wales continue to rise with around 10,000 people disputing Wills annually. This highlights the importance of ensuring that Wills are properly prepared, capacity concerns are addressed appropriately and clear evidence exists to support the validity of the Will. (The Guardian)

Why You Should Consider Making a Will Early/ When You Are Young

You can see from the above that making a Will should be a priority when a person is in good health with clarity of thought. It can avoid disputes later in life and ensuring wishes are clearly recorded.

The Golden Rule In Summary

The Golden Rule is a recognised guideline in Will writing, first established in Kenward v Adams (1975). While not a legal requirement, it recommends that where there are concerns about a person’s age, illness, or mental capacity, a medical practitioner should assess and record their understanding when making a Will. This helps provide additional protection against future disputes and challenges to the Will’s validity.

If you are making or updating a Will or have concerns about capacity issues, it is important to seek specialist legal advice to ensure your wishes are properly recorded and protected. For tailored guidance on Wills and Probate matters, please feel free to contact me on 01332 364436, via email at legal@timms-law.com or visit our website to find out more.

Frequently Asked Questions