Exceptions to the golden rule
For more than 130 years, the test for the mental capacity required to make a will has been that stated by Cockburn CJ in Banks v Goodfellow (1870).1 The application of the test necessarily develops with the development of medical knowledge. The duties of solicitors (or will writers) taking instructions for a will, and seeing to its making, nevertheless remain the same, in relation to testamentary capacity. First, they must do what they reasonably can to satisfy themselves that the testator has capacity to make the will. Second, they must do what they reasonably can to prevent the will being challenged on the ground of want of capacity.
What is required to perform the duties will vary with the circumstances of the case. If a sprightly widow in her sixties gives instructions for a will whereby nearly all her estate is to be divided equally between her children, little if any investigation will be required. But, if a widower in his eighties, who presents as infirm in body and mind, gives instructions for a will under which his children are to receive nothing, and the whole of his estate is to go to his next-door neighbours, much investigation will be required.
The golden rule
Unfortunately, judges have somewhat obscured these ordinary principles by efforts to be helpful. In 1975 Templeman J said in Kenward v Adams (and repeated in Re Simpson (1977) 121 Sol Jo 224):2 ‘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.’
This is helpful insofar as it emphasises that solicitors and will writers must do what the circumstances reasonably require to satisfy themselves that the testator has capacity to make the will; that they must do what they reasonably can to prevent the will being challenged on the ground of want of capacity; and that, where the testator is aged or has suffered a serious illness, these duties will commonly require the making of the will to be witnessed or approved by a medical practitioner who satisfies themselves of the capacity and understanding of the testator, and records and preserves their examination and finding. It is especially helpful because recent research has shown how a ‘good social front’ can mislead someone who is not medically trained into thinking that a would-be testator has capacity.
It is unfortunate Templeman J used the words ‘aged’ and ‘has su ered a serious illness’ without qualiﬁcation. If the sprightly widow has had a serious illness from which she has fully recovered, it cannot surely be appropriate, still less necessary, for her solicitor to get a doctor to conﬁrm she has the capacity to give her estate to her children equally
Recent cases have raised questions over the ‘golden rule’ on assessing testamentary capacity. STEP’s UK Practice Committee plots a course through the apparently conflicting case law to provide clarity on practitioners’ duties
It is unfortunate, however, that Templeman J expressed himself in sweeping terms, using the words ‘aged’ and ‘has suffered a serious illness’ without qualification. Indeed, he impliedly ruled out exceptions by saying that the precautions should ‘always’ be taken. If the sprightly widow has had a serious illness from which she has fully recovered, it cannot surely be appropriate, still less necessary, for her solicitor to get a doctor to confirm that she has the capacity to give her estate to her children equally.
Burgess v Hawes
In 2013, however, there has been another judicial attempt to be helpful, which has been unfortunate. In Burgess v Hawes  EWCA Civ 74, the trial judge found a will invalid on the ground of both lack of testamentary capacity and want of knowledge and approval. The Court of Appeal upheld the trial judge on the latter ground, but doubted the decision on capacity. Mummery LJ said:3‘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...’ Sir Scott Baker made a similar remark.4
The Court of Appeal did not mention the golden rule. There was, moreover, no evidence that the solicitor had done anything to assess the capacity of the testatrix. His typed-up attendance note recorded that she was ‘compos mentis’, but this was not recorded in the original handwritten attendance note, and he seems to have taken no real steps to assess her capacity.
Furthermore, the fact that an expert did not see the deceased cannot automatically reduce the value of their evidence. In modern medicine, diagnoses are chiefly made on the basis of symptoms and investigations such as blood tests, CT scans and biopsies. No one dismisses the views of a pathologist because they have not seen the patient.
A number of recent cases involving testamentary capacity have raised questions on the golden rule, and on the remarks of the Court of Appeal in Burgess v Hawes. In Sharp v Adam  EWCA Civ 449 the rule was observed, but the trial judge held, largely on the basis of the evidence of experts who had not seen the deceased, that the will was invalid, and the Court of Appeal upheld his decision. In Key v Key  1 WLR 2020 the solicitor who took instructions for the will was strongly criticised for failing to observe the rule. In Wharton v Bancroft  EWHC 3250, although lack of capacity was not pleaded, failure to comply with the rule was raised in support of a plea of undue influence. The judge said that the failure was irrelevant, because the solicitor had been called to make a will for a dying man.
In Hill v Fellowes Solicitors  EWHC 61, a professional negligence claim against solicitors in respect of an inter vivos transaction, the judge said that there was ‘plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity’.
The remarks of the Court of Appeal in Burgess v Hawes have had their effect. They influenced the judge in Greaves v Stolkin  EWHC 1140, although it was significant in that case that the solicitor who took instructions for the will had asked questions of the testator with a view to establishing his capacity. More importantly, they were usefully explained by the judge in Re Ashkettle (deceased)  EWHC 2125. He said, among other things: ‘Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless.’
No reported case seems to have considered the research already mentioned, which shows how a ‘good social front’ can mislead someone who is not medically trained into thinking that a would-be testator has capacity. In Greaves v Stolkin, this research was mentioned, but the judge apparently thought it was irrelevant to the facts.
The duty of a will maker who is asked to take instructions for and see to the making of a will is in essence no more and no less than the general duty in contract and tort of a professional person who is instructed to perform a service. In relation to testamentary capacity, they must do what they reasonably can to satisfy themselves that the testator has capacity to make the will; and they must do what they reasonably can to prevent the will being challenged on the ground of want of capacity. What is required to perform the duties will vary with the circumstances of the case. Perhaps the most important considerations are three: first, solicitors must always direct their minds to the capacity of would-be testators. Second, they should err on the side of caution, taking positive (although no doubt tactful) steps to assess capacity themselves, and in more extreme cases seeking medical advice. Third, circumstances may properly restrict such investigations; an example is the circumstances of Wharton v Bancroft. Another example would surely be the situation where the testator refuses to allow a doctor to assess his capacity (unless the solicitor forms the view that the refusal is itself evidence of lack of capacity).
The golden rule is helpful as to what the duties may require in some circumstances. The remarks of Mummery LJ and Sir Scott Baker in Burgess v Hawes may be misleading unless they are merely read as a necessary qualification to the sweeping way in which Templeman J expressed the golden rule. It is important that the words of Templeman J, Mummery LJ and Sir Scott Baker are read together with the judicial remarks in Wharton v Bancroft, Hill v Fellowes Solicitors and Re Ashkettle.
This article has been submitted by the UK Practice Committee, a policy sub-committee of the STEP England and Wales Regional Committee. The primary objective of the UK Practice Committee is to consider how changes in the law will affect STEP members in practice. The Committee provides guidance and support of a practical nature to STEP members.
A medical practitioner’s perspective
James Warner MD MRCP FRCPsych is a consultant/reader in old-age psychiatry.
The Mental Capacity Act 2005 (MCA 2005) is clear that the duty to assess capacity to make a decision rests with the person who is proposing a course of action. So a surgeon is responsible for assessing capacity to undergo an operation, the nurse to assess capacity to agree to have the wound dressed and the social worker to assess capacity to decide to go to respite care post-operatively. Capacity for any decision, including will writing, will depend on the complexity and nuances of the task. Furthermore, the presence of diseases such as dementia or depression may impair an individual’s memory and/or judgment and affect capacity.
Whether or not someone has capacity to write a will is a legal decision that should, I believe, rest with the will writer or solicitor. The role of the doctor is surely to decide whether capacity should be called into question. To form any sort of sensible conclusion, the doctor will need to be provided with key facts by the solicitor (with the consent of the client) such as the identity of the beneficiaries and the magnitude of the estate.
There is a tension between the golden rule, which requires solicitors to obtain a medical opinion when the testator is ‘aged’, and the MCA 2005, which impels us to assume capacity is present unless there are reasons to suspect it is not. Age alone should not be a valid reason to suspect incapacity, and it is abhorrent to suggest otherwise.
Retrospective assessment of capacity is very difficult – even with the patient in front of you. I suspect the way forward here is for solicitors and will writers to take responsibility for assessing capacity, to record this routinely, and to request a prospective medical opinion if capacity is in doubt. A clear written opinion from the doctor should suffice; asking them to witness a will is a step beyond, and in any event will not guarantee a competent assessment.
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