Call 01279 215580
>
>

What Is the Golden Rule and Why Does It Matter?

Posted: Tuesday, 21 August 2018 @ 10:17

WHAT ARE THE KEY DUTIES Of LEGAL PRACTITONERS?

If a will has been prepared by a solicitor, it creates additional obligations upon them.

The ‘Golden Rule’ was set out in the judgment of Templeman J in Kenward v. Adams (1975) The Times 29 Nov: “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”.

While the golden rule has been widely approved by the Courts as having the potential to reduce the risk of a claim of lack of testamentary capacity (e.g. see Sharp v. Adam), and should therefore be offered to testators as an additional precaution even if not observed. The rule is expressed to apply to two categories of testator, namely those who are ‘aged’ or have suffered a ‘serious illness’, and therefore the next step is to consider which illnesses are ‘serious’ for this purpose, and how old ‘aged’ is.

The case of Re Simpson [1977] 121 SJ 224 provides that there is one golden rule that is to be observed, however straightforward the will and however tactless the suggestion, that the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.

WILL GP EVIDENCE SUFFICE TO PREVENT A SUCCESSFUL VALIDITY CLAIM? If it is assessed that medical evidence is appropriate in the circumstances then the initial point of contact would be someone who knows the client, most often their GP.  However, the suggestion that a GP assessment will suffice has been met with some criticism.  It has been suggested that, in order for the golden rule to have substance, a specialist should be approached.  On the other hand, the associated cost, delay and apprehension that can be felt by a client in seeking further specialist advice can potentially cause an adverse reaction.

WHAT IS THE BURDEN OF PROOF? The common law rules regarding burden of proof concerning testamentary capacity are set out in Key v Key (2010): i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face then the court will presume capacity ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. Iii If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nevertheless. Provided the testator had testmentary capacity at the time the will was signed and witnessed it may not matter if the testator loses full capacity. Generally the time to test whether capacity existed is the time of execution of the will.    

 

Comments

  • There are no comments for this page - click here to be the first
Top