Update | Estate planning: rejecting the 'golden rule' would have disastrous consequences

The principles of testamentary capacity are well-settled: a testator must understand the nature of the act of making a will, the extent of the property of which he is disposing, and the persons who may have a claim upon that property (see Banks v Goodfellow (1870) LR 5 QB 549). The proposed dispositions must also not be poisoned or influenced by any disorder of the mind.

It is also a long-established rule of best practice, laid down by Templeman J in two cases from the 1970s (Kenward v Adams [1975] CLY 3591 and Re Simpson (1977) 121 SJ 224), that a solicitor who draws up a will for an aged or infirm testator, or one who has been seriously ill, ought if possible to seek the view of a doctor as to the testator's mental capacity. It is not necessarily sufficient that the will is prepared or witnessed by a competent solicitor.

As pointed out in a number of recent decisions, this so-called 'golden rule' is not a touchstone of validity; a failure to heed the rule does not invalidate the will, any more than following it to the letter guarantees the testator's capacity (see for example Sharp v Adam [2006] EWCA Civ 449 at [27]). Moreover, the courts have rightly observed that following the rule is not always practical, and if a testator refuses to undergo an examination or incur the cost of obtaining a medical opinion, then the solicitor has little choice but to form his own (see Wharton v Bancroft [2011] EWHC 3250 at [110]).

Rule eroded

However, the recent decision of the Court of Appeal in Hawes v Burgess [2013] EWCA Civ 94 seems to go further still in eroding the value of the 'golden rule'.

His Honour Judge Walden-Smith QC, at first instance, found the testatrix's last will was invalid for both lack of testamentary capacity and want of knowledge and approval. That decision was upheld by the Court of Appeal in respect of knowledge and approval; but the court declined to reach a final decision in respect of testamentary capacity, with two of the ?three judges expressing grave doubts ?about as to the judge's reasoning, in preferring expert opinion evidence, over the view of the solicitor who took instructions for the will and described the testator as "compos mentis".

Mummery LJ stated that he entertained doubts as to whether the judge's findings, "based to a significant extent on acceptance of the medical evidence", justified a finding of incapacity. He based this conclusion ?on his concern (at [60]) that "the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer… The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix".

Sir Scott Baker agreed (at [69]): "Where ?a will is drafted by an experienced solicitor who oversees its execution and records at or close to the time that the testatrix was compos mentis and able to give instructions persuasive evidence to the contrary is required. I was impressed by the points made [on behalf of the appellant], in particular that little weight could be put ?on the evidence of Professor Jacoby who never saw the deceased".

The implication of these comments is that a solicitor's view of a testator's mental capacity is prima facie reliable evidence of capacity, and unlikely to be rejected by the court on the footing that an expert's conclusions on reviewing the medical evidence are different. Though in most cases a solicitor's view of a client's capacity is likely to be correct, this thinking runs directly counter to the reasoning behind the 'golden rule', which is that mental incapacity is not always obvious to someone who is not medically trained.

These comments in the Court of Appeal are, of course, strictly obiter. But they have, even in the short time since the judgment was handed down, been cited in a first instance decision upholding a professionally drafted will in circumstances where doubts had been raised as to the capacity of the testator.

'Good social front'

In Greaves v Stolkin [2013] EWHC 1140, Newey J noted that both of the expert witnesses called by the parties agreed that lay parties might not necessarily pick up problems with capacity, particularly when conversation is of a social nature, i.e. the 'good social front' (para 59). In response to this, Newey J quoted the obiter comments of Mummery LJ in Hawes v Burgess and simply moved on to discuss the evidence given by the various lay witnesses.

Although the judge went on to refer to points made by one of the experts, he did not consider further whether the deceased might be displaying such a 'good social front'. Although this decision is in our view probably correct on its facts, the dismissal by the judge of the relevance of a 'good social front' is concerning.

Greaves v Stolkin was itself cited in a third recent decision, Simon v Byford [2013] EWHC 1490 (Ch), where the deputy judge Nicholas Strauss QC held that the question was whether the Banks v Goodfellow test meant that a testator who is able to recollect "the identity of the people who deserve to be remembered, but not the terms of, or reasons for, a previous will, does not have testamentary capacity". He found that testamentary capacity was not so negatived, despite the existence of relatively strong evidence of moderate dementia at the time of the execution of the will, on the basis that on being told her previous will did not divide her estate equally between her children, she stated that she wished to execute a new one to rectify the position, and that this was sufficient.

The judge found that the (non-professionally drafted) will was executed on a "good day", on which she had a reasonable level of understanding.

Judgment is currently awaited in a fourth case raising this issue: Ashkettle v Gwinnett (Alexander Learmonth appeared for the claimants seeking to challenge the will). There ?the solicitor, relying to some extent on ?his memory of a meeting 15 years ago, ?felt sure the testator had capacity, even though (unbeknown to the solicitor) she ?had been diagnosed with probable Alzheimer's disease 18 months before, ?and the following day was found to be incapable of completing an eye test due to mental impairment.

Keeping the golden rule

Any trend towards the abandonment ?of the 'golden rule' is dangerous. Many elderly people (even those suffering from dementia or other diseases of the mind) can present a good social façade, such that on any given day they may appear to an untrained observer to be perfectly competent - even to an experienced solicitor. As Professor Jacoby, who often appears in such cases as an expert, puts it: "demented persons with a good social façade may give every appearance of being capable of making a will although, in fact, they lack the necessary capacity" (Williams, ?Mortimer and Sunnucks, 10th edition, ?2013 (paragraph 13-09)).

Nowhere is that more true than in the context of the fourth limb of the Banks v Goodfellow test. Though a solicitor may effectively test whether a testator can correctly summarise the nature and extent of his estate, and name those friends and family members whom he might consider benefiting under his will, it will ?be particularly difficult to evaluate whether the testator's affections towards those people are disturbed by a disorder of the mind, or by rational thought.

That was precisely why the will in Sharp v Adam was invalid, despite the 'golden rule' having been followed assiduously.

In fact, there have been at least ?a dozen cases over the last decade or so where wills have been held invalid on grounds of lack of testamentary capacity, despite having been prepared by solicitors. That is itself a good reason why the Court of Appeal's confidence in the ability of lay people to detect mental incapacity is, we suggest, misplaced.