Posted: Tuesday, 21 August 2018 @ 10:17
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  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.
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
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.
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.