The Golden Rule

In Key v. Key [2010] WTLR 1699 a solicitor was criticised for failing to observe the so-called ‘Golden Rule’ in relation to testamentary capacity, while in Wharton v. Bankroft & ors [2011] EWHC 3250 (Ch) similar criticism was considered misplaced.

In Sharp v. Adam [2006] EWCA Civ 449, where the Golden Rule was observed in ‘every particular and beyond’, the Court of Appeal considered expert evidence capable of outweighing contemporary observations [at ¶95]. However, in Hawes v Burgess [2013] EWCA Civ 74 where the Golden Rule had not been observed at all, the Court of Appeal expressed doubts about the first instance decision of lack of testamentary capacity:

“If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of testamentary capacity. The court should be cautious about acting on the basis of evidence of lack of testamentary capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix…” [per Mummery LJ at ¶60].

Considering the practical difficulties of suggesting that precautions be taken, these cases raise the question: when, if ever, should practitioners be observing the Golden Rule?

The first step in answering this question is to consider the wording of the rule itself.

 

The Golden Rule

The ‘Golden Rule’ was set out in the judgment of Templeman J in Kenward v. Adams (1975) The Times 29 Nov:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical            practitioner who satisfies himself of the capacity and understanding of the testator, and       records and preserves his examination and finding”.

The phrasing of the rule is not mandatory, and as per May LJ in Sharp v. Adam at ¶27:

“The golden rule is a rule of solicitors’ good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule.”

Yet even as a rule of good practice it has been widely approved by the Courts as having the potential to reduce the risk of a claim of lack of testamentary capacity (e.g. see Sharp v. Adam), and should therefore be offered to testators as an additional precaution even if not observed.

The rule is expressed to apply to two categories of testator, namely those who are ‘aged’ or have suffered a ‘serious illness’, and therefore the next step is to consider which illnesses are ‘serious’ for this purpose, and how old ‘aged’ is.

Serious Illness

Illnesses appearing in the reported cases include Multiple Sclerosis (Sharp v. Adam and Perrins v. Holland [2011] 2 WLR 1086), cancer (Allen v. Emery [2005] EWHC 2389 (Ch) and Wharton v. Bancroft & others [2011] EWHC 3250 (Ch)), Parkinson’s disease (Re Simpson (1977) 121 SJ 224) and dementia (Hoff v. Atherton [2004] EWCA Civ 1554, Scammell v. Farmer [2008] EWHC 1100 (Ch) and Simon v. Byford & others [2013] EWHC 1490 (Ch)). All are recognised by the medical profession as being capable of affecting testamentary capacity, and it would appear logical that this should be the definition of ‘serious illness’.

There are many illnesses recognised as being capable of affecting testamentary capacity, the following non-exhaustive list being by way of illustration:

  • Addisons disease
  • Affective disorders (e.g. depression)
  • Anaemia
  • Cancer
  • Cerebral abscess
  • Cerebral malaria
  • Cerebral tumour
  • Creutzfeldt-Jakob
  • Cryptococcosis
  • Cushings syndrome
  • Dementia
  • Diabetes
  • Encephalitis
  • Epilepsy
  • HIV
  • Huntington’s disease
  • Hydrocephalus
  • Hypertension
  • Hypo/hyperparathyroidism
  • Hypoxia
  • Liver and kidney failure
  • Meningoencephalitis
  • Multiple Sclerosis (MS)
  • Parkinson’s disease
  • Porphyria
  • Schizophrenia
  • Septicaemia
  • Simmond’s disease
  • SLE
  • Stroke/ TIA
  • Syphilis
  • Trypanosomiasis
  • Tuberculosis (TB)

Such illnesses do not all require lengthy admissions to hospital, and may not be immediately apparent to the casual observer, rendering it necessary for sufficient enquiries to be made as to whether a diagnosis has been given and/or treatment commenced. If so, then the rule ought to be observed.

Aged

In reported cases where no ‘serious illness’ had been diagnosed the age of testators range generally from 76 (Re Morris [2001] WTLR 1137) to 97 (Abbott v. Richardson [2006] EWHC 1291 (Ch)), but it is arguable that the term ‘aged’ should properly relate to the statistical incidence of age-related illnesses capable of affecting capacity such as stroke, dementia or Parkinson’s disease.

The incidence of stroke increases rapidly for those in the UK over the age of 75, from 0.15% to 1%, and it is estimated that 1% of those aged between 65 and 74 in the UK, 10% of those aged over 75 and 25% of those aged over 85 have dementia, making it tempting to suggest that ‘aged’ means ‘over 65’, ‘over 75’ or ‘over 85’. However, around 15,000 people in the UK are estimated to have dementia under the age of 65, and the statistics show no differentiation between those over 50 and those over 75 in relation to the incidence of Parkinson’s disease (1%) or depression (10-15%) in the UK.

In the context of application of the Golden Rule I would therefore submit, however tactless it may appear, that ‘aged’ should mean ‘over 50’.

Beyond ‘Aged’ or ‘suffering a Serious Illness’

Templeman J had considered, when formulating the Golden Rule, the oft cited test for testamentary capacity set out in Banks v. Goodfellow (1870) LR 5 QB 549 at 565:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

However it is clear from this test, which does not refer to the terms ‘aged’ or ‘serious illness’, that there are many categories of testator beyond merely those identified in Kenward v. Adams to whom the Golden Rule could and perhaps ought to be applied. Obvious examples include those affected by physical trauma (e.g. head injuries), emotional trauma (e.g. bereavement as in Key v. Key), drugs (e.g. morphine, corticosteroids, barbiturates, alcohol, amphetamines, cocaine, LSD), and toxins (e.g. lead, arsenic, mercury), all of which are recognised as being capable of affecting capacity.

In addition, while not forming part of the Banks v. Goodfellow test or the rule set out in Kenward v. Adams, one of the features most common to the cases reviewed is that the terms of the relevant Will are in some way controversial, e.g. in Sharp v. Adam the Court of Appeal considered the Will to be ‘partly irrational’, and in both Key v. Key and Hawes v. Burgess there was a significant departure from the previous Will-making pattern.

Conclusions

While the Golden Rule is merely a rule of good practice which may be considered difficult or tactless to suggest, it’s observance is recognised as having the potential to reduce the risk of a claim of lack of testamentary capacity. It is clear from the cases that such a claim is not limited to those testators who are ‘aged’ or who have suffered a ‘serious illness’, and it would therefore appear less difficult and tactless to offer it’s observation to all testators as an additional precaution, should they wish to incur the expense, within a firm’s standard guidance or questionnaire.

When considering whether the rule ought to be observed for a particular testator, it may assist to ask the following questions:

(i) is the testator over the age of 50?;

(ii) has he been diagnosed with an illness recognised as being capable of affecting testamentary capacity?;

(iii) does he have a history of drug or alcohol abuse, or has he had a recent traumatic event (physical or emotional)?; and

(iv) do you have concerns, or have concerns been expressed by anyone else, as to his mental capacity (e.g. episodes of drowsiness, confusion, forgetfulness or a marked change in personality)?

If the answer to any one or more of these questions is yes then I would suggest the rule ought to be observed where the terms of the Will appear controversial, where substantial changes are being made to the previous Will-making pattern, or where there is no evidence of any previous Will-making pattern.

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