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The golden rule survives

1.    A recent case heard by Mr Justice Briggs in the Chancery Division served as a clear reminder that compliance with the Golden Rule remains an essential step in the avoidance or limitation of probate disputes.

2.    The substance of the Golden Rule is that where a solicitor is instructed to prepare a will for an aged testator or for one who has been seriously ill, he should arrange for a medical practitioner to satisfy himself as to the capacity and understanding of the testator and to make a contemporaneous record of his examination and findings.

3.    In Key v Key [2010] EWHC 408 (Ch) instructions were accepted from an 89 year old testator (D) whose wife of 65 years had been dead for no more than a week.  Neither was there as assessment of the testator’s capacity nor a contemporaneous attendance note of the meeting with the testator:

4.    The result after hearing expert and lay evidence was that the Court concluded that the testator lacked testamentary capacity and the will was therefore invalid.

5.    The testator died in July 2008 at the age of 90.  His wife had died about eighteen months previously in November 2006.  They had been married for 65 years and were survived by four children; two sons and two daughters.  The sons had worked with their father and by 2006 had taken over the running of the family farming business.  One daughter lived locally to her father and the other lived in the USA.

6.    A week after the testator’s wife’s death, his solicitor attended the family home in order to take instructions on a new will.  One of the testator’s daughters was present throughout this meeting.  Two days later the same daughter took her father to the solicitor’s office to execute the new will.  Under D’s 2006 will the majority of his estate was divided between his two daughters.

7.    The sons challenged the validity of the 2006 will on the basis that D did not have testamentary capacity and that he did not know and approve the contents of the will.  The brothers’ challenge was successful on the first ground and therefore the Court did not need to consider the second ground.  However it had been argued by both parties and therefore the Court held that it would have found against the will on this ground.

8.    The Court found that the death of D’s wife so shortly before the execution of the will could impact D’s testamentary capacity, and reminded practitioners that the “Golden Rule” is very much alive and well.  When a will is drawn for an aged testator or one who has been seriously ill, it should be witnessed or approved by a medical practitioner, who ought to record his examination of the testator and his findings.

9.    This decision does not chart new ground on the issue of testamentary capacity, but serves as a useful reminder of well-established principles.  The leading case on this subject continues to be Banks v Goodfellow (1870) LR 5QB 549 in which it was held that the Court must be satisfied that the testator must (1) understand the nature of his act; (2) understand the extent of property of which he is disposing; (3) comprehend and appreciate the claims to which he ought to give effect; and (4) not be subject to any disorder of mind as shall “poison his affections, pervert his sense of right, or prevent his natural faculties”.

“9 Gough Square News”: November 2010

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