The golden rule

The golden rule

For advisors working in contentious probate, a typical working day may include reviewing wills that are being disputed due to disappointed beneficiaries.

Whether being asked to defend or challenge the validity of a will, the starting point for any assessment will be (where the will was prepared by a solicitor) to obtain the will file using the Larke v Nugus1 request and carefully review it.2

The contents of the will file will play a key role in how the claim unfolds. Frequently, the will file will determine whether the claim proceeds beyond an initial investigation and whether any dispute can be resolved by agreement.

Record the reasoning

Advisors will first want to understand, on behalf of their client, the reason given by the testator for the terms of their will. This is of critical importance to those left behind, as well as to all grounds for contesting a will, yet it is common to find a will file where little or no record has been made of the testator’s reasoning. The impact of this is particularly acute where the will being made marks a significant shift from the previous will or where the will makes no or limited provision for an obvious beneficiary (e.g., a spouse or child).

Many clients wanting to investigate the will of a loved one will first want reassurance that it reflects the testator’s wishes. Although they may not agree with it, if they can understand the testator’s logic, it may allow them to move on.

A detailed record of the reasons for the terms of the will and any changes from previous wills can be of real comfort to those left disappointed and can protect the estate from expensive litigation.

Going for gold

The second issue relates to the ‘golden rule’. The concept of the golden rule will be well known to will practitioners. It derives from the judgment of then-Judge Templeman in Kenward v Adams, which canbe summarised as follows:3 when instructed to prepare a will for an elderly testator, or one who has been seriously ill, one should arrange for a medical practitioner to undertake an assessment of the capacity and understanding of the testator and to make a written record of the outcome.

The golden rule is less a rule and more a piece of guidance, and so a failure to comply with the golden rule will not of itself impact the validity of a will; however, a common ground for challenging a will is on the grounds that the testator lacked testamentary capacity.

Although the evidence of the person who drafted the will can be very powerful, practitioners are not medically qualified and cannot speak with the authority of, for example, an expert in old-age psychiatry. In this respect, a client suffering from a loss or impairment of their mental faculties may not be aware of this or may try to hide their condition. They may make statements that, on the face of it, appear reasonable and rationale.

Where the golden rule has not been followed, the court has been willing to reject the contemporaneous assessment of the will drafter in favour of expert testimony obtained post-death.

There are, of course, practical limitations surrounding the golden rule. Clients may be unwilling to consent or there may be time limits that make the obtaining of a report impractical. However, wherever possible, there are good reasons for discussing the golden rule with the client.

Obtaining a report pursuant to the golden rule could save tens of thousands of pounds of legal costs and avoid the advisor being brought into time-consuming court proceedings. If there is an issue regarding timing, there is no reason not to get the will executed and obtain the report afterwards (ideally as near to the date of the execution of the will as possible).

Lessons

Although it is not possible to prevent all will disputes, it is possible to understand what causes them, what can be done to minimise them and how to help with their early resolution.

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