Applying The ‘Golden Rule’ Matters When Making Your Will | Curtis Parkinson

0115 964 7740 -

Coronavirus – COVID-19: Whilst our offices remain closed, all our staff are working and our telephones are fully operational. We’re also offering meetings via video for advice on Wills, Lasting Power of Attorney or Probate and 'Drive In' appointments for Notorial services. As ever, please contact us if you have any queries. More >>

Applying The Golden Rule

Applying The ‘Golden Rule’ Matters When Making Your Will

The Importance of Assessing Testamentary Capacity

For solicitors and Will writers, one of the most important parts of drawing up a Will is assessing a client’s ‘testamentary capacity’. If the client is elderly or ill or there are any doubts about their capacity, how a practitioner might determine this, is very important. Since the 70’s it’s become best practice to obtain an assessment of capacity from a medical practitioner. This is known as applying the ‘Golden Rule’.

With more than a quarter of UK residents projected to be +65 or over within the next 50 years, this is statistically more relevant than ever. After all, such wills are more at risk of being challenged by those disinherited under them.

So how do practitioners test ‘testamentary capacity’ and why is the so-called ‘Golden Rule’ still important?

1. Banks v Goodfellow Test (1870)

For almost 150 years, the test for mental capacity when making a Will rested with the legal principles established in the case Banks v Goodfellow (1870). Essentially, this means for any Will to be valid the person who is making the will (known as the ‘testator’) must:

  1. Know what a Will is; that they are making their Will and the effect of their decisions;
  2. Know how much their estate is worth; to whom they are bequeathing it and why;
  3. Know who their dependants are; and have an awareness of which people they are obligated, morally or through family ties, to include as beneficiaries of the will. Importantly, this provision can be complicated in cases where the testator’s memory is compromised, for example by dementia.

2. The Golden Rule (1975)

This ‘rule’ was first established in Kenwood v Adams [1975] CLY 3591 and later confirmed in Re Simpson [1977] 121 SJ 224. Both cases were concerned with the doubt surrounding the testator’s ability to execute a valid Will.

Known as the ‘Golden Rule’, Mr Justice Templeman stated that:

“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 may appear, and however difficult or tactless it may be to suggest that precautions 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 examination and finding”.

It’s generally accepted that observing the ‘Golden Rule’ is regarded as best practice, but it is not actually a rule of law.

3. The Mental Capacity Act (2005)

So, where does The Mental Capacity Act 2005 (MCA) fit in?

The MCA introduced a new test for testamentary capacity in 2005. This legislation was designed specifically to empower and protect individuals who are unable to make a decision because of the way their mind or brain works is affected, for example, by illness or disability, or the effects of drugs or alcohol.

So, for Wills made after 1 October 2007, practitioners were required by law to give due consideration to the implications of the MCA and the functional tests it introduced.

Fundamentally, the MCA follows 3 guiding principles you must:

  1. Start with the assumption that the individual has capacity to make the decisions;
  2. Be able to demonstrate you have made every effort to support the individual to make the decision for themselves;
  3. Remember that if a person makes a decision which you consider eccentric or unwise, this does not necessarily mean that the person lacks the capacity to make the decision.

MCA Two-stage Test

A key element of the Act is the test of capacity and there are 2 elements to this assessment:

Stage One:

  1. Is there an impairment of, or disturbance in the functioning of a person’s mind or brain? if so
  2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

If the first stage of the test of capacity is met, the second test requires the individual to show that the impairment or disturbance brain or mind prevents them from being able to make the decision in question at that time.

Stage Two – Functional Test:

This is a functional test focusing on how the decision is made, rather than the outcome or the consequence of the decision.

  1. To understand the information relevant to the decision;
  2. To retain that information;
  3. To weigh that information as a part of the process of making a decision;
  4. To communicate his/her decision (whether by talking, using sign language or any other means)

This test must be complete and recorded; the documentation must demonstrate the above process.



The Importance of Case Law

Following the introduction of the MCA it was generally accepted by practitioners adopting best practice, that the MCA test should be used in conjunction with the Banks v Goodfellow test, not as a replacement for it.

However, following a number of high profile cases, the precise legal position was unclear. Until Walker and another -v- Badmin and others [2014]. In this case the two daughters of the deceased claimed that their mother lacked capacity at the time she executed her Will. Under the terms of the Will, the deceased left her share of former matrimonial assets on trust to her partner of two years (who was 23 years her junior) for life and thereafter in equal shares to her daughters. The residue of her estate was divided as to 50% to her partner and 25% to each of her daughters.

In his ruling, Judge Nicholas Strauss QC considered the tests for capacity in Banks v Goodfellow and the MCA 2005. He concluded that although the tests overlapped and would often produce the same result, that would not always be the case, and he, therefore held that the common law test in Banks v Goodfellow still applies.

In James v James [2018] EWHC 43 (Ch) a claim arose following the death of Charles James on 27 August 2012. It concerned a proprietary estoppel claim, and a challenge to the deceased’s will on the ground of lack of testamentary capacity.

Once again, this case highlights again that judicial views are hardening on the need to obtain a medical opinion for aged testators, almost as a default option. Furthermore, it’s clear that practitioners will face criticism if they fail to obtain medical advice, even if they may believe their client to ‘of sound mind’.

How Can We Make Sure We Do Things Correctly?

It’s easy to be confused by the legislation, new and old. Moreover, subsequent case law has, as we’ve outlined above, challenged accepted practice.

Recommended Approach

In situations where the testator’s capacity may be questioned, every effort should be made not to discriminate. This is achieved by:

  1. Invoking the ‘Golden Rule’, as described above;
  2. Making observations as described in the Banks v Goodfellow test: and
  3. Obtaining medical evidence.

By adopting this approach, the practitioner will be protecting the testator’s interests and their beneficiaries under their Will from a future challenge as far as they feasibly can.

The Doctor’s Role

The Will should be witnessed or approved by a medical practitioner who ‘satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding.’ (Kenward v Adams ChD 29 November 1975)

Uncomfortable (but essential) Conversation

It’s invariably difficult to suggest to an elderly person that a doctor may be required to check their capacity before their Will is made. But, legally, it is very important.

Whilst obtaining a medical opinion will not guarantee against the Will being challenged successfully, claimants will have a much weaker case if they are faced with relevant medical evidence.

Further Information

We have many years’ experience in dealing with sensitive issues such as this. We would recommend speaking to us in person, so please contact us to arrange an appointment.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

Partnerships & Accreditations