The “golden rule” in regard to testamentary capacity is a legal guideline that ensures the validity of a Will, particularly when the person making the Will (the testator) may be of advanced age or experiencing mental health issues. The rule advises that in situations where there is any doubt about the testator’s mental capacity, a qualified medical professional should assess and confirm their capacity to make a Will. This article will explore the origins of the golden rule, its importance, and how it helps protect the wishes of the testator and the interests of beneficiaries.
What is testamentary capacity?
Testamentary capacity refers to the mental ability of a person to make a valid Will. In the UK, for a person to have testamentary capacity, they must satisfy the following criteria:
- Understanding the nature of making a Will – The testator must comprehend that they are creating a legal document that sets out their wishes regarding the distribution of their estate after death.
- Understanding the extent of their estate – The testator needs a general understanding of what assets they own, such as property, savings, and investments.
- Considering their beneficiaries – They must be able to consider who will benefit from their Will and whether they have obligations to certain individuals, such as family members.
- Being free from delusions that would affect the disposition of their estate – The testator should not be experiencing delusions, for example as a symptom of a mental disorder, that might affect the disposition of their estate, when making their Will.
These criteria, originally laid out in the 1870 case of Banks v Goodfellow, remain the standard test for determining testamentary capacity in the UK today.
What is the golden rule?
In respect of testamentary capacity, the golden rule is attributed to the case of Kenwood v Adams [1975] which sets out that in cases where a testator is elderly or may be suffering from an illness, their Will should be approved and witnessed by a medical practitioner who is satisfied as to the testator’s testamentary capacity. Solicitors and Will writers should therefore arrange for a medical professional to assess the testator’s mental capacity when there is any reason to doubt their ability to make a valid Will. This typically applies in situations where the testator is elderly or has a medical condition, such as dementia, that might impair their cognitive abilities.
The golden rule is not a legal requirement, but rather a best-practice guideline. Its purpose is to safeguard the testator’s wishes, ensure the Will’s validity, and reduce the risk of disputes or challenges after the testator’s death. If the testator’s capacity is challenged in court, a medical assessment made at the time of drafting the Will can serve as valuable evidence that they were of sound mind and understood the implications of their decisions.
Why is the golden rule important?
The golden rule is important for several reasons:
- Protecting the testator’s wishes: If there is any doubt about the testator’s capacity when making or changing a Will, arranging a medical assessment can help to clarify their intentions and that the testator understands what they are doing. This is particularly important if the testator makes unexpected or significant changes, such as disinheriting a close family member or leaving large sums to someone outside the family.
- Reducing the risk of disputes: Wills are often challenged after the testator’s death, especially if family members believe the testator lacked capacity or was unduly influenced by someone else. A capacity assessment conducted by a qualified medical professional provides strong evidence that the testator had the mental ability to make the decisions in their Will, reducing the chances of a successful legal challenge.
- Ensuring legal validity: A Will can be declared invalid if the testator is found to have lacked testamentary capacity at the time of making it. If the Will is invalid, the estate may be distributed according to the rules of intestacy, which may not reflect the testator’s wishes. An assessment of capacity arranged under the golden rule can help to prevent this outcome if it is determined that the testator has capacity to make their Will by providing a safeguard against capacity-related challenges.
- Supporting the solicitor’s role: Solicitors have a duty to ensure that their clients have the necessary capacity to make a Will. Following the golden rule allows solicitors to fulfil this duty and avoid any accusations of negligence if the Will is later contested on the grounds of capacity.
When should the golden rule be applied?
The golden rule should be applied in any situation where there is doubt about the testator’s mental capacity. This might occur when:
- The testator is elderly or frail.
- The testator has been diagnosed with a medical condition that could impair cognitive function, such as dementia or Alzheimer’s disease.
- The testator is making unusual changes to their Will, such as excluding close family members or making sudden large bequests to individuals or charities.
- There are concerns that the testator may be under the undue influence of another person.
In these situations, arranging for a medical professional to assess the testator’s capacity is a crucial step to ensuring that the Will is valid and reflects the testator’s true intentions.
The role of medical professionals in testamentary capacity assessments
When applying the golden rule, solicitors often work with healthcare professionals, such as doctors, social workers and other registered healthcare professionals, to assess the testator’s capacity. These professionals conduct a formal capacity assessment, evaluating the testator’s ability to understand the decisions they are making and their consequences.
At TSF Assessments, we provide comprehensive mental capacity assessments, including those related to testamentary capacity. Our team of experienced healthcare professionals, including doctors, registered nurses, social workers and speech and language therapists, can offer objective, reliable assessments to determine whether a person has the capacity to make or amend their Will. If the person is found to have capacity to make a Will, our assessors can also act as witnesses to the Will.
