What is the golden rule?
The capacity threshold to make a Will is set out in case law. There is also an obligation on legal professionals, called the 'golden rule', to obtain a medical opinion on testamentary capacity if there are any doubts that the Banks v Goodfellow test is not satisfied.
The Golden Rule is a legal principle that advises legal professionals dealing with Wills and estate planning to exercise particular caution when assessing the mental capacity of a person creating or amending their Will, especially if that person is elderly or in ill health.
The Golden Rule was articulated by Lord Templeman in the case of Kenward v Adams [1975] in the UK.
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 the opinion of a medical professional to assess the mental capacity of the testator at the time of making or amending the Will. The goal is to ensure that the person creating the Will is doing so with a clear and competent mind and to minimise the risk of legal challenges to validity based on an absence of capacity.
Following the Golden Rule helps safeguard the legal validity of the Will and 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 in the context of estate planning/
The Golden Rule and marriage
The same capacity threshold and golden rule requirement do not apply to marriage.
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 us. We will put you in touch with a trusted professional who specialises in this area of the law.
