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Making a Will & the Elderly

A photo of Noel McNicholas
4th October 2017

Making a Will and the Elderly

It’s a common scenario - an elderly person wants to get their affairs in order before frailty of mind and body deem it too late. So if they want to make a Will, what steps should be taken to ensure that as far as possible it cannot later be challenged on the grounds of a lack of testamentary capacity or lack of knowledge and approval?

The obvious starting point is not to leave things to chance and to consult a solicitor. This is not just a case of transposing the spoken words of the testator into the form of a Will, having it duly executed and job done. The solicitor has a duty to go further and make enquiries concerning the capacity of the testator (especially an elderly one) and to ensure they understand and approve the contents of their Will. But because elderly testators are often more vulnerable and reliant upon family and friends, care must also be taken to ensure their wishes are free from coercion and represent their true and settled intentions.

Test for Capacity

Any analysis would normally include seeing the testator alone (unless they expressly state they wish to be accompanied), make enquiries about their family and assets as well as asking them to explain changes from earlier Wills. The solicitor must also consider whether they can comply with the legal test for testamentary capacity. This is laid down from the long established rule in Banks v Goodfellow [1870]:

“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Golden Rule

If there remains some doubt surrounding the testator’s capacity, the solicitor should ideally obtain medical evidence. This in essence is the ‘golden rule’ and stems from the words of Templeman J in Kenward v Adams [1975]:

“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”.

So where an elderly or seriously ill testator wants to make a Will, is medical evidence as to their capacity compulsory? The answer is no. Although observing the golden rule should certainly be regarded as good practice and a prudent measure, it is not a rule of law. Some recent cases have highlighted why it’s not always possible to obtain medical opinion and alternatively the dangers that lurk where it was possible.

In Key v Key [2010], the elderly testator was a farmer and had just lost his wife of 65 years and was naturally devastated. They had four children, two boys and two girls. The boys worked closely with their father on the farm for their whole lives, the girls having moved away. The testator’s 2001 Will left his Estate to his wife and then to his sons. When his daughters discovered this, they instructed a local solicitor to attend the house and take instructions and then took their father to the solicitor’s office to execute it a few days later.

The new Will left the bulk of the Estate to the daughters, who explained that this balanced the lifetime transfer of farmland to the sons. The sons challenged the Will and won on the grounds of a lack of testamentary capacity and knowledge and approval. The court found the testator was suffering from the severe effect of bereavement, which was akin to severe depression when he gave instructions for the Will. The court also took the opportunity to go out of its way to criticise the solicitor who had not taken any steps to satisfy himself the testator had testamentary capacity and in doing so failed to observe the golden rule.

Contrast this with Wharton v Bancroft [2011]. Here the testator was bedridden and dying. He executed a Will which left his substantial Estate to his partner of 32 years. The Will was prepared by a solicitor called to the home as a matter of urgency. The children of the testator subsequently claimed the partner had unduly influenced the testator and the solicitor did not comply with the golden rule. However, the court made some practical observations, stating it was not possible for the solicitor to obtain (1) consent from the testator to (2) conjure up a medical practitioner to prepare a report of capacity at such short notice. The Court said no criticism should be made of the solicitor who had made his own assessment of capacity in light of the urgent circumstances. So the golden rule might not be applicable where the testator is upon their deathbed or where they appear entirely competent to give instructions.

Even if the golden rule is observed, that doesn’t mean testamentary capacity has been unquestionably settled. In Sharp v Adam [2006] all the necessary precautions to obtain detailed medical advice were taken and still a lack of capacity was established. But that is not to say observing the golden rule is an unnecessary step which will inevitably incur delay and costs. It makes sense to take this step which serves as a desirable precaution to ward off later expensive Will challenges. It may also serve as a buffer to any professional negligence claim a solicitor may face if a claim for lack testamentary capacity is successful.

Finally, care should be taken to ensure the medical practitioner is at least familiar with the legal test for capacity set out in Banks v Goodfellow. If they are not, what precisely are they certifying? Even this is not itself a straightforward exercise because the medical practitioner would need to know the size of the Estate, the family background and the provisions of previous Wills. Not so easy a task when you have an elderly patient to assess. But the golden rule still has its place and it is in all parties’ interests it be observed, even if it is not strictly necessary in law and might not have an ultimate bearing on the outcome of a Will challenge.

If you have any queries concerning the validity of a Will, please contact Noel McNicholas on 01455 620805 or