A High Court judge has provided further comments on the so-called ‘golden rule’ and clarified that in his view there is no obligation on a solicitor to obtain a medical opinion as to the testator’s capacity where capacity is not an issue.
In the case of Wharton v Bancroft, the judge provided some useful comments on the ‘golden rule’. The rule states that solicitors taking instructions for elderly or seriously ill clients ought to have the testator’s doctor satisfy himself as to the capacity and understanding of the testator and make a contemporaneous record of his examination and findings, because defects in mental capacity could be detected which may not be apparent to a friend or professional person.
In brief, the facts of this case are a heady cocktail of issues likely to cause family disputes. In this case, the deceased, Mr Bharton, lived with his partner of 32 years and on his deathbed provided instructions to his solicitor, Mr Bancroft, for a new will in contemplation of his impending deathbed marriage to his partner. This will left everything to his partner/intended wife and excluded his three daughters (two from an earlier marriage and one from another extra-marital relationship). Mr Bancroft arranged for this new will to be executed without following the golden rule, and Mr Bharton then married his intended shortly before dying.
The daughters challenged the will under various grounds but crucially dropped any argument over lack of capacity.
In his ruling, the High Court judge said: “I consider the criticism of Mr Bancroft for a failure to follow ‘the golden rule’ to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry.”
These sensible comments will no doubt be welcomed by probate solicitors up and down the country who have been plagued by doubt over whether or not the golden rule should be followed, particularly when taking instructions from elderly or ill clients and where there is no suggestion of any lack of capacity.