The Golden Rule – time to move on

  • Author : Stephen Lawson
  • Date : September 2010

The Golden Rule is back with a vengeance. I contend that it is time to move on – and for will-makers to be the individuals primarily responsible for assessment of capacity of their clients.

Templeman J (as he then was) in Re Simpson [1977] 121 SJ 224 said ‘In the case of an ageing testator or a testator who has suffered a serious illness there one Golden Rule which should always be observed, however straight-forward matters may appear and however difficult or tactless it may be to suggest that precaution be taken. The making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and finding’.

The substance of this passage was recently quoted in the case of Key v Key& Others [2010] EWHC 408 by Briggs J in relation to the estate of George Douglas Key, who died on the 20 July 2008 – two months short of his 91st birthday. In 2006 a solicitor, Michael Cadge, took instructions from Mr Key for the making of a will. After his death the will was challenged on the grounds of lack of capacity and want of knowledge and approval.

Briggs J concluded that ‘A significant element of the responsibility for this tragic state of affairs lies with Mr Cadge. Contrary to the clearest guidance, in well known cases, academic texts and from the Law Society, Mr Cadge accepted instructions for the preparation of the 2006 will from an 89 year old testator… without taking any proper steps to satisfy himself of Mr Key’s testamentary capacity...’.

The judicial approach is therefore clear – abandon the Golden Rule at your peril – or comments like this may be made about you and a claim for costs of a probate action may follow.

With due humility, I do, however, believe that it is time to revisit the issues arising in relation to the Golden Rule. In my view it is often not the failure of a will-maker to refer a testator to a medical practitioner that is the cause of the problem – but the failure of the will-maker to address issues of capacity – and to make proper attendance notes.

Clarity

All of our legal training teaches us that if there is to be a ‘rule’ – the rule has to be clear – otherwise it is meaningless.

The rule states that in the case of an aged testator the rule is said to apply to an ‘aged testator’ – I contend that this is an utterly meaningless phrase. What is an ‘aged testator’ – does this mean someone who is an ‘old age pensioner’, i.e. over the age of 65 – or someone who is, for example, 75 years old, 85 years old – or over a 100? Unless there is an agreement about what an ‘aged testator’ is then the rule is plainly meaningless and cannot be complied with. I have recently returned from a walking holiday in the French Alps with my father who is 74 years old. I think he would swing for me if I told him that I had doubts about his mental capacity (although in fairness I have been telling him this since I was 15 years old).

It will be appreciated that the judicial retirement age is now 70. Research by the Alzheimer’s Society shows that one in 100 people aged between 65-69 have some form of dementia – and that currently, within the UK 750,000 people have some form of this condition. Dementia has no respect for rank or profession. Against that background, if a will-maker was instructed by a judge approaching retirement age does that mean that it behoves the will-maker to insist that the said judge should first undertake a test of capacity – ‘no matter how tactless that suggestion may be’?

I express particular concern about the comment that if there is an aged testator then ‘however straightforward matters may appear’ a testator should have the will witnessed by a ‘medical practitioner’ – leading to an implicit criticism in every case where this arrangement is not made. This advice is not borne out by experience of the real world. Just suppose an aged testator whose wife has predeceased him and who has one adult son and a modest value estate and who appears to be perfectly capable of giving instructions – is it seriously suggested that, in default of any other suspicious circumstances, the will should not be made?

There is no agreement as to the definition of ‘medical practitioner’. Norris J wrote in the Association of Contentious Trust and Probate Specialists (ACTAPS) Newsletter in January 2007 ‘The medical practitioner’s opinion, like the material on which it is founded, is simply evidence. It is not always reliable. Capacity is not a purely medical question. Experience shows

aThat General Practitioners (and indeed Geriatricians) have widely varying views as to what is required to satisfy the legal test of testamentary capacity and;bThat even where doctors do share the same understanding of the test there is a legitimate divergence of view amongst specialists in any given case and;cThat General Practitioners do not have the technical knowledge to assess the degree to which a particular condition or drug therapy impairs cognitive function’.

So there we have it – recognition from a judge that even if compliance with the Golden Rule is achieved the outcome may remain uncertain.

I respectfully suggest that attempted compliance with the rule in any event will cause more practical problems than non-compliance.

For many reasons it is unlikely that a client’s GP would be willing or able to provide a meaningful report. The days of a Doctor Finley-type practice, where a family GP had a long professional relationship with his patients, have long since gone. For the reasons set out by Norris J, if a medical opinion is to be obtained it is likely to be from a specialist consultant. A specialist consultant would be unlikely (and unwise) to give an opinion without sight of full medical records – this is likely not only to be GP records but also full hospital records. In the case of Sharp v Adam [2006] WTLR 1059 a dispute arose about the capacity of Mr Adam to make a will. He died on the 21 August 2002 – but he had attended a clinic in Germany in 1996, where an MRI scan was undertaken. How long would it take to track down and obtain a copy of a scan taken in Germany? Any practitioner who is used to obtaining medical records will know that there are frequently long delays associated with their recovery – in one case I dealt with, a hospital eventually wrote to me a year after a request was made to tell me that the medical records I had requested were now available and would I be willing to pay their fee for production? Is it seriously to be suggested that a practitioner should refrain from preparing a will pending receipt of medical records in the meantime? Bearing in mind that, by definition, the will-preparer is already dealing with an ‘aged testator’ any associated delay would be more likely to result in a negligence claim brought by disappointed beneficiaries if the testator died in the meantime it is, of course, worth remembering that the Golden Rule was articulated in Simpson before the House of Lords established the principle of duty of care in White v Jones [1995] 1 ALL ER 691 – that decision – and others since – show the relatively short time period given to a will-maker to draw up a will for execution after receiving instructions. This is not even taking into account the additional cost burden, which a testator would be unlikely to want to pay.

One of the standard tests in relation to capacity is the mini mental test, but this in itself has problems. The mini mental test is in reality only a memory test – rather than a test designed to satisfy the criteria set out in Banks v Goodfellow. Furthermore, the test has no formal ‘pass or fail’ mark – by way of illustration this process is referred to in the case of Scammell v Farmer [2008] EWHC 1100, in which it was said ‘a total of 30 marks is available. A score of 27 or more is acceptable. A score of 20 – 26 is in the mild range of dementia’. Contrast these comments with the comments in Hoff v Atherton [2004] EWCA Civ 1554, in which it was said ‘the Judge noted that both experts accepted that it is possible for a particular individual to have testamentary capacity despite suffering from mild to moderate dementia’ – so where does this leave the practitioner if a will-maker scores 18 out of 30, 23 out of 30 or 26 out of 30?

I revert to the case of Key (ibid), in which Briggs J said ‘The issue as to testamentary capacity is, from first to last, for the decision of the Court. It is not to be delegated to experts, however eminent…’. There is an implicit recognition therefore that the ultimate issue as to capacity is to be determined by a lawyer – not a medic – and against that background why should not the decision be made by lawyers in the first place – appreciating of course, that this decision would be not be determinative and would ultimately fall to be considered by a Court hearing all evidence – evidence that would not be available to a will-maker, e.g. full medical records, evidence from friends, relatives, neighbours or other witnesses – it is surely not to be suggested that in every case where a will is to be made this ‘full evidence’ should be obtained to determine capacity. The costs of preparing a will in these types of cases would soon equal the cost of a fully contested probate dispute.

The remedy

I suggest that it is impractical advice (except in extraordinary cases) to suggest that a will made by an aged testator – or one who has suffered from a serious illness – should be witnessed or approved by a medical practitioner – it is simply not practical in every case – in terms of cost, time and practical application. The remedy is, however, entirely in a will-maker’s hands. There is no doubt at all that there is no excuse for will-makers failing to make proper notes of attendance – indeed there is no reason at all in principle why a will-maker could not administer a mini mental test – duly adapted with questions to address the legal tests of capacity set out in Banks v Goodfellow – this process was recognised by Norris J in the ACTAPS article I have referred to above: ‘A medical practitioner would now be expected to follow a recognised procedure, to conduct one of the standard mini mental tests, and probably to cross check the accuracy of the factual statements made by the testator in answers to questions rather than simply pronounce generally on the question of capacity’. My challenge is for the will-maker to do this – perhaps by having a standard ready-made form adapted for the purpose, which would include relevant questions such as:

  • What do you think you are seeking to achieve by making a will?
  • What (approximately) would be the value of your estate – and how is it made up?
  • Who would be likely to have a ‘moral claim’ – or expectation of benefit out of your estate?

If you have made a will before – why do you want to change it? [It is important to note that will-makers should not simply, uncritically, record answers that are given by testators – I remind the reader that in Sharp v Adam the judge regarded Mr Adams’ decision to exclude his daughters as so remarkable that in the absence of any other explanation, it was most probably the result of an impairment of cognitive function – reasons given by a testator may themselves be evidence of a lack of function – see also, for example, Kostic v Chapman [2007] EWHC 2298.

It is essential that attendance notes and instructions be contemporaneously written up – the will-maker must be aware of the requirement at a later stage to produce a Larke v Nugus letter to justify actions taken.

And finally

It seems to me that a decision about how to proceed to make a will should rest with the person making the will – a will-maker should, (in the interest of good practice) tell a testator about the Golden Rule and offer the option of incurring further expense and delay – having the will witnessed by a suitably qualified practitioner or whether to proceed in the presence of a will-maker – after questions that were appropriately formulated. Provided the testator is given information and makes an informed decision the author ventures to suggest that will-makers should be protected ‘I was following my client’s instructions’ – what better response could there be to the question ‘why didn’t you comply with the Golden Rule?’.

Stephen Lawson TEP is a solicitor at Forshaws Davies Ridgway LLP (FDR), Warrington, Cheshire

The author’s views are published in order to stimulate debate in an area where the ‘golden rule’ is imprecisely formulated. The views do not reflect the views of the editors of TQR or STEP. Departures from the ‘golden rule’ may amount to negligence on the part of a will draftsman.


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