End of a "golden era"?

End of a "golden era"? Not quite, but the recent Court of Appeal case of Burns v Burns [2016] EWCA Civ 37 provides important guidance as to the correct application of the “Golden Rule” for solicitors when taking instructions for the preparation of a Will.

Wills, testamentary capacity and the “Golden Rule”

A paramount consideration for any Wills & Probate solicitor is that of ‘testamentary capacity’ – i.e. whether their client is of sound mind and memory to make or alter a valid Will.

In the case of Kenward v Adams [1975] CLY 3591, Templeman J highlighted the importance for solicitors to proceed with caution and suggested that, where there are any doubts surrounding a client’s testamentary capacity, a solicitor should seek the opinion of a medical professional. This has since been labelled “The Golden Rule”.

Where a Will is challenged on the grounds that the testator was not of sufficient capacity, it is always helpful for the defending party to be able to show that the “Golden Rule” was followed and impartial medical evidence was obtained as evidence of the testator’s state of mind at the point the Will was executed. Whilst it must be remembered that this does not provide an automatic defence to any challenge, it is certainly a good practice to follow.

When obtaining impartial medical evidence it is important to ensure a proper and comprehensive letter of instruction is sent to the medical professional.

Burns v Burns

This case related to two separate Wills of Mrs Eva Burns; the first drafted in 2003 and the second in 2005. The 2005 Will was challenged at court by one of Mrs Burns’ sons, Anthony, on the basis that his mother had lost her mental capacity by the time it was drafted. This argument was rejected by the District Judge who ruled that the 2005 Will was valid. Anthony therefore proceeded to the Court of Appeal.

One of the grounds for appeal, was that the District Judge had not properly taken into account the medical evidence and that the solicitor involved had not followed the “Golden Rule”. Rather worryingly, it transpired that the solicitor had no knowledge of the case of Kenward v Adams or the “Golden Rule”.

Despite this, the Court of Appeal rejected Anthony’s arguments and stated as follows;

“The [District Judge] was also well aware of the golden rule and Mr Walton [solicitor]’s apparent ignorance of it…. the rule does not constitute a rule of law but provides guidance as a means to avoiding disputes…”

Although the solicitor’s approach was said to have “left much to be desired”, the Court of Appeal rejected the argument that a medical professional should have been consulted, as the “Golden Rule” is guidance only. Furthermore, the Court of Appeal was satisfied that the solicitor did believe that Mrs Burns understood and approved the Will.

Although, the appeal was rejected, this case emphasises the importance of ensuring that a testator has capacity when drafting a Will. Although it may not be mandatory to do so, failure to follow the “Golden Rule” and/or take detailed contemporaneous file notes, may expose a Will to potential challenges.

If you wish to make a Will please do not hesitate to contact our Wills, Trusts and Probate Team.

If, on the other hand, you wish to challenge or defend a Will, our Probate Disputes Team is able to provide expert advice as to the merits of your case.

Please note: the contents of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.