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All that glitters

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The ‘golden rule’, which prioritises the assessment of mental capacity to make a will, conflicts with the solicitor’s duty to execute the will in a reasonable time. Simon Taube QC examines the options, and a potential practical approach

The courts, legal writers and academic texts have long stressed the importance of the ‘golden rule’. The rule applies where a client instructs a solicitor to prepare a will and an issue may arise about the mental capacity of the client to give valid instructions to the solicitor.

It is not sensible to consider the golden rule in isolation from the solicitor’s duty to carry out the client’s instructions to prepare and arrange for the execution of the will within a reasonable time

The golden rule was stated in 1975 by Mr Justice Templeman in Kenward v Adams [1975] CLY 3591 in the following terms:

“… 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 appear, and however difficult or tactless it may be to suggest that precautions should 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 examinations and findings.

“There are other precautions which should be taken. If the testator has made an earlier will this should be considered by the legal and medical advisers of the testator and, if appropriate, discussed with the testator.

“The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator. These are not counsels of perfection. If proper precautions are not taken injustice may result or be imagined, and great expense and misery may be unnecessarily caused.”

This article argues that, although awareness of the golden rule is still useful as a general warning of the perils in this area, a solicitor acting for an aged or ill testator may have to exercise judgement in a manner that is more nuanced than appears from a bald statement of the rule.

First, there are implicit assumptions underlying Mr Justice Templeman’s statement, about the nature of medical practitioners’ relations with their patients, which may no longer be accurate in today’s NHS.

Second, until the later decision in 1980 in Ross v Caunters [1980] Ch 297, it was unclear that a solicitor instructed to prepare a will owed any duty of care to an intended beneficiary of the testator’s will. It is unsurprising that in 1975 Mr Justice Templeman failed to consider how the golden rule could be reconciled with the solicitor’s duty to prepare and arrange for the execution of a will within a reasonable time.

The scope of the golden rule

The golden rule is not a rule of law (see Re Perrins [2009] EWHC 2558 (Ch)). It is a judicial statement of what constitutes good practice by solicitors. Compliance with the golden rule does not establish the validity of a will, and non-compliance does not demonstrate its invalidity.

The rule’s purpose is to help avoid or minimise disputes. Testators with failing mental faculties may seek to conceal their shortcomings. A friend or solicitor may not detect defects in mental capacity which would be apparent to a trained medical examiner, who has received a proper description of the legal test for testamentary capacity (see Mr Justice Briggs in Key v Key [2010] EWHC 408 (Ch)).

However, if a solicitor breaches the golden rule, the solicitor faces a risk that, in the event of a later probate dispute, one or other party will claim the costs of the dispute were caused by the failure to comply with the rule, and should be recovered from the solicitor.

Changes in medical provision since 1975

In practice, there have been significant changes in medical provision in the decades since Mr Justice Templeman expressed the golden rule. An article by Judge Alastair Norris QC in the Association of Contentious Trust and Probate Specialists Newsletter, issue 87 (February 2007), describes some of these changes. Today, it may not be correct to assume the solicitor’s testator client will always have a doctor who:

  • knows the client patient well or at all;
  • is prepared to provide confidential advice about the patient’s testamentary capacity without the patient’s personal request;
  • is willing to provide advice which might expose the doctor to legal claims; or
  • can form a clear opinion on the client’s mental capacity, even where they have an accurate statement of the legal test of testamentary capacity.

A medical practitioner who has conducted an investigation of the patient’s capacity may also find it difficult to attend to witness the will’s execution.

A practical approach for solicitors

The starting point is that, if a client instructs a solicitor to prepare their will, the solicitor’s duty is to prepare the will with due skill and care, and within a reasonable time. However old or infirm the client, the solicitor must provide a reasonably prompt service. If the testator fails to execute a valid will because of the solicitor’s breach of this duty, the solicitor may be liable to the testator’s intended beneficiary (see White v Jones [1995] 2 AC 207).

What is the duty of a solicitor where the testator client is aged or infirm, and where the solicitor has concerns about the mental capacity of the testator client? Inevitably, the solicitor will have to exercise judgement and common sense in the light of all the circumstances of that case. There are likely to be many different factors to consider in each case, including the terms of the client’s previous wills, the extent of their estate, and their reasons for making the new will.

Below there are suggestions for a practical approach for solicitors, which addresses both the capacity issues and the need to avoid delay in executing the will, in three sections: first, if you conclude that the client has capacity; second, if you conclude that the client does not have capacity; and third, if it is not clear whether or not the client has capacity.

If the client has capacity

If, once you have obtained instructions for a will, you conclude that the testator appears to have testamentary capacity, your primary duty is to draft the will and arrange for its due execution within a reasonable time.

Advise the client that it could save unnecessary uncertainty and legal costs after death if the client were now to:

  • seek advice from a suitable medical practitioner to confirm they have mental capacity to make the will; and
  • instruct the medical practitioner to send a copy of the report to you for information and safe-keeping.

Explain that, in future, the medical report will be of most value if contemporaneous with the will’s execution and if its author witnesses the will. (Alternatively, the report could be contemporaneous with the giving of instructions to the solicitor – see Parker v Felgate (1883) 8 PD 171.) However, warn the client that there may be a delay before the report is received or its author can attend to attest the will, and so there may be a risk that the client may fail to execute the will in time – for instance, because death or testamentary incapacity intervenes.

Advise that the client has a choice: before executing the will, the client may wait for the medical report (and possibly for the medical adviser to attend to witness the will), with all the attendant risks of delay; or, the client can execute the will as soon as possible, before the medical report, so as to avoid the risks of delay. If the client chooses the second option, review the position after obtaining the medical report.

This approach leaves it up to the client to decide whether or not to obtain medical advice and, if the client decides to do so, whether to execute the will before or after receipt of the medical report. As a prudent solicitor, you should stress that you are not undertaking to advise whether the client has capacity. Problems are more likely to arise if, instead of advising the client on choices, the solicitor assumes responsibility for advising the client on their capacity (see Feltham v Bouskell [2013] EWHC 1952 (Ch)).

If the client does not have capacity

If, after interviewing the client, you conclude that the client does not have capacity, you should decline the retainer at the outset. There is no obligation to act. If you reach your decision swiftly, no prejudice to the client will occur. However, if you act for a while and only later identify grounds for concern about the client’s testamentary capacity, it may be more difficult for you to withdraw without helping the client.

If it is not clear whether or not the client has capacity

If you interview the client and remain uncertain about the client’s capacity, you have a difficult judgement call to make. You may still have a duty to prepare the will within a reasonable time. However, the doubts about the client’s capacity may cause uncertainty and expense after the client’s death.

In this case, it may still be prudent to follow the same approach as if you had concluded that the client had capacity, but to advise the client more firmly that they should seek a medical report. You might also consider preparing a will in accordance with the instructions as soon as practicable, with a view to its swift execution as a holding measure, and then reviewing the position again after the medical report has been obtained.

This situation highlights the potential conflict between the golden rule and the solicitor’s duty to prepare and arrange the execution of the will within a reasonable time.

If there is a delay before the medical report is obtained, what is the solicitor supposed to do? If the will is executed in advance of a medical report, and the report concludes that the client had capacity at the time of the meeting with the medical professional, it may still be contended that the client lacked capacity at the earlier date, when the will was executed. Alternatively, if the solicitor waits for the report, and the report concludes that the client does not have capacity at the time of the meeting with the medical professional, the intended beneficiary of the will may allege that, at the date of the meeting with the solicitor, the testator did have capacity, so the solicitor should have had the will executed before the report was obtained.

Practical conclusions

It is not sensible to consider the golden rule in isolation from the solicitor’s duty to carry out the client’s instructions to prepare and arrange for the execution of the will within a reasonable time. But where the solicitor considers both principles together, complicated issues of judgement may arise. These illustrations highlight not only how difficult the problems are, but also how much will depend on the solicitor’s judgement in each case.

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