What is the Golden Rule?
The golden rule in estate planning sets out how a legal professional should act when supporting older clients. It concerns assessing a person’s mental capacity to make a Will. This is known as testamentary capacity.
You may have heard the Latin phrase ‘compos mentis’, which means ‘of sound mind’. What you consider sound mind and what I do will be slightly different. There can be no single definition because we are all so unique.
What is testamentary capacity?
The test for capacity to make a Will is set out in a legal case called Banks v Goodfellow (the correct way to say this is Banks AND Goodfellow, not Banks versus Goodfellow). Legal professionals are obliged to obtain a medical opinion on testamentary capacity if they have doubts that the Banks v Goodfellow test is not satisfied. This obligation is called the Golden Rule.
The Golden Rule is a legal principle that advises legal professionals dealing with Wills and estate planning to exercise particular caution when assessing a person's mental capacity to create or amend their Will, especially if that person is elderly or in ill health.
Lord Templeman articulated the Golden Rule in the UK case of Kenward v Adams [1975].
Lord Templeman stated, "A solicitor should make a careful record of his or her satisfaction as to the capacity and understanding of the testator and the circumstances prevailing at the time, or make a record of the reasons for making a will in the face of suspicion or doubt."
In simple terms, the Golden Rule states that if a person creating a Will (called a testator) is elderly, unwell, or there are concerns about their mental capacity, the person drafting the Will should take extra precautions. These may involve seeking a medical professional's opinion to assess the testator's mental capacity at the time of making or amending the Will. The aim is to ensure that the person creating the Will is doing so with a clear and competent mind. With care, this will minimise the risk of legal challenges because the person making the Will did not know or understand what they were doing.
Following the Golden Rule helps safeguard the legal validity of the Will. It reduces the likelihood of disputes among heirs or beneficiaries regarding the testator's capacity to make decisions about their estate. Following the Golden Rule reflects a commitment to ethical and responsible legal practices. Every estate planner should know and follow the rules, even if they are not a solicitor. Case law has also determined that anyone dealing with estate planning should be held to the same standard of knowledge and care as the regulated legal professions.
The Golden Rule and marriage
Did you know that marriage cancels a Will?
An elderly person with a mental impairment such as dementia can be coerced into getting married - we call this predatory marriage. Sadly, I have witnessed the devastating outcomes when this happens.
The new spouse automatically becomes their heir because their marriage cancels any previous Will. Strangely, there is no capacity test or golden rule for consent to marriage. If the registrar believes the couple consent to marry, it can proceed. This can have consequences for the adult children who expect to inherit when their mother or father dies. The courts have been reluctant to set aside a marriage where it appeared to be consensual.
What is happening about this problem?
MP Fabian Hamilton proposed the Marriage and Civil Partnership Consent Bill in 2018. The Government considered these reforms:
Marriage would no longer revoke Wills (essentially revoking section 18 of the Wills Act 1837).
Better training for marriage registrars to identify vulnerable individuals.
Marriage questionnaires to alert the registrar to any potential capacity issues.
Public notices of intentions to marry, to provide opportunities for intervention.
No further action has been taken, and momentum has stalled on these reforms.
If you suspect a vulnerable person is being coerced or manipulated to make a Will or marry, or if your family have been affected by a predatory marriage, please reach out to me. I will put you in touch with a trusted legal professional who specialises in this area of the law.
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