Testamentary Capacity

A cautionary tale for anyone either drafting a Will or considering disputing a Will on the grounds of capacity.

In the recent case of Burns –v- Burns 2016 EWCA Civ 37, the Court reviewed case law concerning testamentary capacity.

Although a family dispute was at the heart of this case, nevertheless the role of the solicitors involved who prepared the disputed Will was brought sharply into focus.

In the Burns case, the Court found the solicitor who had many years of experience in non-contentious work including house conveyancing, commercial work and the preparation of Wills, had nevertheless never heard of what both practitioners have come to know as “the Golden Rule”.

This says that in circumstances where a solicitor is making a Will for a client and there is any possibility or doubt about that client’s testamentary capacity, then the solicitor as a matter of good practice should either obtain a capacity report from a Health Care Professional or arrange for a General Practitioner to be present when the Will is signed.

In the Burns case, the testatrix was a frail and elderly client and there was clear evidence of impairment of memory and confusion historically, but despit that the solicitor failed to obtain medical opinion as to the testatrix’s capacity.  Nevertheless, the Court upheld the Will as being valid on the basis that the solicitor had done enough to satisfy himself as to his client’s capacity. Relying on the commentary in Williams on Wills (9thEd), that the Golden Rule “….is not a touch stone of validity or a substitute for established tests of capacity or knowledge and approval, the Court upheld the will, saying the Golden Rule does not constitute a rule of law but provides guidance and a means of avoiding disputes, in effect giving the solicitor concerned a “get out of jail card”.

Although the Court in the Burns case did go on to say that the solicitor’s involvement “left much to be desired” and had patently failed to avoid a situation in which the Will had become disputed.

The lessons therefore to be learned certainly for solicitors and anyone involved in the preparation and drafting of Wills is that they should ensure that they are fully acquainted with the Golden Rule and the prudent steps that practitioners should take in terms of obtaining a capacity report.

In short, the Golden Rule still applies and should be followed if practitioners and families wish to ensure costs and protracted Court proceedings are to be avoided.

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