Charles Holbech reviews the importance of a medical opinion for the aged or infirm testator
In Re Simpson [1977] Templeman J said 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 satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.
The 'rule', therefore, appears to be that a medical opinion of testamentary capacity should always be obtained in the case of an aged testator, or a testator who suffers from a serious illness, even if there are no obvious indicators of lack of capacity.
The value of a medical opinion is that a friend, or a non-medical professional adviser, such as a solicitor, may fail to detect defects in mental capacity which would become apparent to a trained and experienced medical examiner who understands the test for testamentary capacity (Cowderoy v Cranfield [2011] at para 137). If a medical opinion is obtained certifying capacity, this may go a long way to avoiding a subsequent probate claim based upon lack of capacity.
Judicial criticism of solicitors who fail to observe the golden rule
In Key v Key [2010], Mr Key, an 89-year-old farmer made a will ten days after the unexpected death of his wife of 65 years, providing for the bulk of his estate to be divided between his two daughters. In stark contrast, under his previous will, his estate had been left, subject to his wife's life interest, equally to his two sons. A solicitor (Mr Cadge) had, two days before, attended upon Mr Key at his home, at the request of one of the daughters, Mary. Mary accompanied Mr Key to the solicitor's offices on the day when he executed his will.
The court found that Mr Key was devastated by the recent death of his wife when he made his will. This amounted to a severe affective disorder which on its own, or together with the mild dementia from which Mr Key was suffering, deprived him of testamentary capacity.
The solicitor was roundly criticised by the judge who said:
As will appear, a significant element of responsibility for this tragic state of affairs lies with Mr Cadge. Contrary to the clearest guidance, in well known cases, academic texts and from the Law Society, Mr Cadge accepted instructions for the preparation of the 2006 will, from an 89 year old testator whose wife of 65 years' standing had been dead for only a week without taking any proper steps to satisfy himself of Mr Key's testamentary capacity, and without even making an attendance note of his meeting with Mr Key and Mary, at which the instructions were taken. Mr Cadge's failure to comply with what has come to be well known in the profession as the Golden Rule has greatly increased the difficulties to which this dispute has given rise and aggravated the depths of mistrust into which his client's children have subsequently fallen.
Further analysis of Key can be found in 'For the record', by Ian Burman, TELTJ123 January/February 2011 p26.
Golden rule not determinative
A number of judges have, however, emphasised that a failure to follow the golden rule is not determinative of testamentary capacity. It is a matter of good solicitors' practice, not a rule of law. Its value is in avoiding disputes. Therefore, a failure to follow the golden rule will not necessarily mean that the will is invalid for lack of capacity. As Sonia Proudman QC said in Allen v Emery [2005], at para 24:
It is undoubtedly a desirable precaution, and one which can save a deal of trouble in the future, for a solicitor to observe the golden rule where there is the possibility of dispute as to testamentary capacity. Failure to do so, however, is not in my judgment determinative; the rule is no more than prudent guidance for a solicitor ... Ultimately capacity is a question of fact like any other which the court must decide on the evidence as a whole.
Therefore, where evidence has been called on both sides as to the testator's mental capacity, reference to the golden rule is rather like crying over spilled milk (Carr v Beaven [2008] at para 12). The golden rule is not itself a touchstone of validity and is not a substitute for the established tests of capacity (Cattermole v Prisk [2008] at 1287). The court must apply the standard tests of capacity in Banks v Goodfellow [1870] at 565 to the evidence as a whole.
Conversely, even if the golden rule is scrupulously observed, and a doctor certifies capacity, it does not necessarily follow that the court will find that the testator had capacity. In Sharp v Adam [2006] the testator (who suffered from progressive multiple sclerosis) executed his will in the presence of two solicitors and his GP, who certified his capacity. Indeed, the solicitors did everything conceivably possible, short of submitting the testator to a wholly impracticable full-scale series of neuro-physiological tests and examinations, to satisfy themselves that the testator had testamentary capacity. The Court of Appeal nonetheless set aside the will for lack of capacity, in large part because there was no sound reason for the testator to have wholly excluded his daughters from benefit under the will. May LJ had this to say on the golden rule, at para 27:
Counsel... came quite close to submitting that such meticulous compliance with the golden rule should in principle be determinative. In our view this would go too far. The opinion of a general practitioner, unimpeachable in itself and supported by that of one or more solicitors, may nevertheless very occasionally be shown by other evidence to be wrong. The golden rule is a rule of solicitor's good practice, not a rule of law giving conclusive status to the evidence obtained in compliance with the rule. Nevertheless, where a testator's apparent mental state is observed and recorded at the time when he actually executes the will in complete compliance with the rule and with the care with which it was in the present case; and where the professional people concerned reached a proper and informed conclusion that the testator does have testamentary capacity, it will require very persuasive evidence to enable the court to dislodge that conclusion.
Doubts as to value of medical evidence procured pursuant to golden rule
There is, in any event, a real doubt as to the value of medical evidence obtained from a GP in observance of the golden rule. Most GPs or other medical professionals – even if they are prepared to assist (which they are often not) – do not have the specialist expertise to assess testamentary capacity. In Perrins v Holland [2009] para 59, Lewison J cast doubt on the medical validity of the golden rule:
Dr Gross stressed that the assessment of a person's cognitive capability is a task of great difficulty. He suggested that a medical practitioner such as a specialist MS liaison nurse, or a GP might not be capable of the task, which could really only be adequately undertaken by a specialist neurologist. Even for a specialist neurologist the determination of testamentary capacity was, in his view, a very difficult exercise. I may say that his evidence cast considerable doubt on the medical validity of the socalled 'golden rule' that in case of doubt about testamentary capacity a lawyer should call in a GP. It is also striking that during the course of the history of Robert's illness no one (including medical practitioners) was willing to give an opinion on whether he actually had mental capacity. Nor was Robert tested to determine the extent of such cognitive defects as existed.
This must surely be correct: many GPs will not have the requisite skill to test testamentary capacity. In one sense, the testator's GP is the person best placed to assess the testator's capacity, as the GP will have knowledge of the testator's health and circumstances. However, the GP may not have sufficient specialist expertise.
However, if a specialist neurologist is to be enlisted this may involve considerable delay and expense. If the testator is aged, or seriously ill, delay in executing the will would not be attractive. Indeed, a solicitor could be liable in negligence to the disappointed beneficiaries if they are responsible for unreasonable delay in procuring execution of the will, and the testator dies in the meantime (see White v Jones [1995]). One solution may be for the will to be duly executed and witnessed, and then be re-executed by the testator and witnessed by the specialist.
In addition, the value of the specialist's evidence is dependent to a large extent on the information to which they are made privy. In order to assess capacity, the specialist will need to know such matters as the nature and size of the estate; the nature and quality of the relationship with the proposed beneficiaries, beneficiaries under previous wills, family members and dependants; and details of the provision made under previous wills. The testator's consent will be required to disclose such information.
Circumstances in which the golden rule may be disregarded
In Wharton v Bancroft & ors [2011], Mr Wharton, who was terminally ill, made a death-bed will in contemplation of marriage, leaving his entire estate to his partner, of 32 years, Maureen. The will was prepared by a solicitor, Mr Bancroft, who read it to Mr Wharton before execution. Immediately after executing the will, Mr Wharton married Maureen. He died a couple of days later. Mr Wharton's children claimed that the will was procured by Maureen's undue influence, even though she had not been present when instructions were given to the solicitor. The claim failed. One of the arguments in support of the undue influence claim was that Mr Bancroft had not followed the golden rule. Norris J had this to say, at para 110:
I consider the criticism of Mr Bancroft for a failure to follow 'the golden rule' to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client's consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator's own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client's agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that 'the golden rule' has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.
Although the claim was of undue influence, and not of lack of testamentary capacity, Norris J's comments are of application to incapacity claims. A solicitor is not necessarily to be criticised for making their own assessment of capacity where there is a need for urgency.
Aged or seriously ill
As noted, the golden rule is said to apply in the case of 'an aged testator or a testator who has suffered a serious illness' (Re Simpson). However, no guidance was given as to what is meant by 'aged'. The testator in Re Simpson was suffering from Parkinson's disease, went into a coma within four days of execution of the will and was dead within two days after that. The testator in Buckenham v Dickinson [2000] was 93 years old, practically blind, very deaf, and appears to have been able only to grunt or nod in answer to questions. In Re Morris [2001] the testatrix was 76, frail, and serious doubts as to her capacity had been raised by another firm of solicitors. In Allen the testatrix was 88, terminally ill and frail. In Key the testator was 89 year old and had just lost his wife of 65 years in unexpected circumstances.
Clearly, these are extreme cases where the solicitor would not have been justified in failing to obtain medical confirmation of capacity. Nonetheless, it must be sensible policy to obtain a medical opinion in less extreme cases. But how far is it necessary to go? Should medical confirmation of capacity always be obtained, or at least recommended, in the case of an aged testator? If so, what age counts as aged? Many 75-year-olds would take offence if it were suggested that a doctor be brought in to assess their capacity.
Grounds for suspecting incapacity
It is submitted that the real question is whether the solicitor has reason to believe that there might be a challenge to the will on the grounds of incapacity. This is not solely to be determined by the age of the testator, or whether they are suffering from a serious illness.
If there are no grounds for suspecting incapacity, there should be no duty to make inquiries as to capacity. In the New Zealand case of Public Trustee v Till [2002] the court found that there was nothing in the circumstances surrounding the taking of instructions for an invalid will which ought to have alerted a reasonably competent practitioner to any lack of testamentary capacity. There was, therefore, no reason to obtain medical advice.
Of course, there is a distinction between best practice, and what is necessary to avoid a negligence claim. In Hill v Fellowes Solicitors LLP [2011] (in the context of a contract) it was held that a solicitor was generally only required to make inquiries as to a person's capacity to contract if there were circumstances such as to raise doubt as to that in the mind of a reasonably competent practitioner. The relevant test where professional negligence was alleged, however, was not whether someone should have been more careful. The standard of care was not that of a particularly meticulous and conscientious practitioner. The test was what a reasonably competent practitioner would do having regard to the standards normally adopted in their profession. There was plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they were instructed by an elderly client just in case they lack capacity. Such a requirement would be insulting and unnecessary.
It is suggested that there may be a slightly higher duty in the case of a will than in the case of a contract. Nonetheless, there should be no general duty to obtain medical evidence just because the testator is elderly. However, it is good practice to advise that such evidence be obtained in order to avoid the potential for a probate claim.
It may be also advisable to procure a medical opinion in the case of a testator who is not aged or seriously ill, for example, where the testator appears to be suffering from the effects of drug or alcohol abuse, or where the provisions of the proposed will are irrational or perverse.
Testator's refusal to obtain medical opinion
In Re Morris Rimer J stated that the solicitor should have 'insisted' that some medical assistance was invoked. Templeman J in Re Simpson stressed that the golden rule should always be observed, however difficult or tactless it may be to suggest that precautions be taken. The implication is that the solicitor should refuse to act if the testator does not consent to medical assistance.
However, the better view is that a solicitor is under no duty to refuse to act simply because the testator declines to obtain a medical opinion. The solicitor cannot be in breach of duty in failing to make inquiries of a doctor if the testator has not authorised the making of such inquiries (see Public Trustee v Till para 25). The solicitor would be acting properly and competently in advising the testator as to the consequences of not obtaining medical confirmation of capacity, and in recording such advice. Of course, this assumes that the testator has capacity to decide whether or not to consult a doctor.
Professional negligence
Even though the golden rule may not, on close examination, be a golden rule, it does not follow that solicitors would be to safe to disregard it: they should be aware of the risk of a negligence claim should they prepare a will for an incapable testator, having failed to observe the golden rule.
Assume the following scenario: a testator executes a will (Will 2) revoking a previous will (Will 1). Will 2 is set aside in a probate claim, brought by the beneficiaries of Will 1, on the grounds of lack of testamentary capacity. The beneficiaries of Will 1 obtain an order for costs in the probate action, but it cannot be enforced (for example, because the defendants were publicly funded). The personal representatives or beneficiaries of Will 1 then bring negligence proceedings against the solicitor who prepared Will 2, alleging that the solicitor was negligent in preparing Will 2 for a testator whose lack of capacity would have been revealed if the golden rule had been observed. There could then be a negligence claim to recover the unrecovered costs of the probate action which had arisen only by reason of the solicitor's negligent failure to observe the golden rule. If the solicitor was negligent in the circumstances in not following the golden rule, and the causal link between such negligence and the costs of the probate action can be established, the solicitor will be liable for such costs.
If the beneficiaries' costs of the probate action have been paid out of the estate, they are not the correct claimants (Worby v Rosser [2000]). The personal representatives will be the correct claimants, as the loss will have been suffered by the estate (Corbett v Bond Pearce [2001] at 430D-E).
It is also conceivable that a solicitor who fails negligently to observe the golden rule could be liable to the beneficiaries or personal representatives of Will 2 in respect of the unrecovered costs of a probate action to propound Will 2, if the testator's capacity is upheld at trial. A contemporaneous medical opinion might have disclosed that the testator was capable, thus averting the necessity of incurring the costs of a probate claim to establish capacity.
Conclusion for practitioners
The golden rule is hedged around with so many exceptions and reservations that it has rather lost its lustre. It may be disregarded if the testator has an urgent need to execute a will because, for instance, they are terminally ill. It can also be disregarded if the testator declines to consent to instructing a doctor (so long as the solicitor reasonably believes that the testator has capacity to give such instructions). It may also be permissible to ignore the rule if the testator is elderly but shows no signs of incapacity. In addition, the rule is not determinative. Even if it is observed, the court may still find that the testator lacked capacity. The court may cast doubt on the value of the medical evidence, particularly if from a non-specialist GP. However, if a specialist neurologist is to be brought in, this will lead to expense and delay which may be unacceptable to the testator and/or expose the solicitor to a White v Jones claim. Lastly, even if a medical opinion is not obtained, the court may still find that the testator had testamentary capacity.
Nonetheless, it is surprising how often the rule is not observed in cases where it clearly should have been observed, leading almost inevitably to a probate claim. A solicitor should always have the rule in mind in the case of a hospitalised, or recently hospitalised, testator, particularly if the will represents a significant departure from previous wills, or is otherwise likely to be controversial.
In any event, there is little to be lost by the solicitor at least advising that the rule be observed, where the testator's capacity is reasonably in doubt but is not clearly absent. The solicitor should seek to persuade the testator of the value of a medical certification of capacity in preventing costly and unpleasant litigation after the testator's death. If the testator declines to accept such advice, and this is faithfully recorded, the solicitor will have acted properly and competently.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
