It is a fairly typical scenario – an elderly person wants to get their affairs in order before frailty of mind and body deem it too late.
So if they want to make a Will, what steps should be taken to ensure as far as possible that it cannot later be challenged on the grounds of a lack of testamentary capacity or lack of knowledge and approval?
The obvious starting point is not to leave things to chance and to consult a solicitor. This is not a simple case of transposing the spoken words of the testator into the form of a Will, having it duly executed and job done. The solicitor has a duty to go further and make enquiries concerning the capacity of the testator (especially an elderly one) and that they understand and approve the contents of their Will.
But because elderly testators are often more vulnerable and reliant upon family and friends, care must also be taken to ensure their wishes are free from coercion and represent their true intentions.
Test of capacity
Any analysis would normally include seeing the testator alone face to face (unless they expressly state they wish to be accompanied), then making enquiries for any changes from earlier Wills and considering whether they can comply with the legal test for capacity which was defined in the long established rule in Banks v Goodfellow [1870]:
“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] 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.”
Golden rule
If there remains some doubt surrounding the testator’s ability to execute a valid Will, the solicitor should obtain medical evidence. This in essence is ‘the golden rule’ and stems from the words of Templeman J in Kenward v Adams [1975]:
“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”.
So where an elderly or seriously ill testator wants to make a Will, medical evidence as to their capacity is a prerequisite. Except it isn’t. Although observing the golden rule should certainly be regarded as good practice and a prudent measure, it is not a rule of law.
Some recent cases have highlighted why it is not always possible to obtain medical opinion and alternatively the dangers that lurk where it was possible.
Case law
Key v Key
In Key v Key [2010], the elderly testator was a farmer and had just lost his wife of 65 years and was naturally devastated. They had four children, two boys and two girls. The boys worked closely with their father on the farm for their whole lives, the girls having moved away.
The father’s 2001 Will left his Estate to his wife and then to his sons. When his daughters discovered this, they instructed a local solicitor to attend the house and take instructions and then took their father to the solicitor’s office to execute it a few days later.
The new Will left the bulk of the Estate to the daughters, who explained this balanced the lifetime transfer of farmland to the sons.
The sons challenged the Will and won on the grounds of a lack of testamentary capacity and knowledge and approval. The court found the testator was suffering from the severe effect of bereavement, which was akin to severe depression when he gave instructions for the Will.
The court also took the opportunity to go out of its way to criticise the solicitor who had not taken any steps to satisfy himself the testator had testamentary capacity and in doing so failed to observe the golden rule.
Wharton v Bancroft
Contrast this with Wharton v Bancroft [2011]. Here the testator was bedridden and dying. He executed a Will which left his substantial Estate to his partner of 32 years. The Will was prepared by a solicitor called to the home as a matter of urgency.
The children of the testator subsequently claimed the partner had unduly influenced the testator and the solicitor did not comply with the golden rule.
However, the court made some practical observations, stating it was not possible for the solicitor to obtain (1) consent from the testator to (2) conjure up a medical practitioner to prepare a report of capacity.
The court said no criticism should be made of the solicitor who had made his own assessment of capacity in light of the urgent circumstances – click here for more information. So the golden rule might not be applicable where they are on their deathbed or where they appear entirely competent to give instructions.
Sharp v Adam
Even if the rule is observed, that does not mean testamentary capacity has been unquestionably settled.
In Sharp v Adam [2006], an unusual case in itself, all the necessary precautions to obtain detailed medical advice were taken and still a lack of capacity was found. But that is not to say observing the golden rule is an unnecessary step which will inevitably incur delay and costs.
It makes perfect sense to insert a relatively inexpensive step which serves as a desirable precaution to ward off later expensive Will challenges. It may also serve as a buffer to any professional negligence claim a solicitor may face if a claim for lack testamentary capacity is successful.
Finally, care should be taken to ensure the medical practitioner is at least familiar with the legal test for capacity set out in Banks v Goodfellow. If they are not, what precisely are they certifying? Even this is not itself a straightforward exercise because they would need to know the size of the Estate, the family background and the provisions of previous Wills. Not so easy when you have an elderly patient to assess.
The golden rule still has a place and it is in all parties’ interests it be observed, even if it is not strictly necessary in law and might not have an ultimate bearing on the outcome of a Will challenge.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.