The Court of Protection & deputies

Publish date

12 October 2015

Assessment of capacity & the golden rule

The issue of making a will is seen by many as perhaps ‘tempting fate’, and it is a well used, but nonetheless stark, statistic that only around one third of our adult population have made a will.

Factors to consider for clients who need a will?

When a person decides to put their affairs in order, and prepare a will, it is not unusual for them to instruct a lawyer to assist and advise. Particularly in situations where a client is elderly, ill or has acquired a brain injury, there is a significant responsibility on the solicitor to ensure that the person instructing them has the relevant capacity to understand the instructions they are giving.

To make a valid will, the law requires a person to have the requisite mental capacity to do so. This is referred to as ‘testamentary capacity’. In essence, this means that the person making the will, should understand what a will is and what its effect will be; knowing broadly what assets are comprised in your estate; and recognising those people to whom others might expect you have a moral obligation to benefit from your estate, such as a spouse, or children.

When assisting someone to prepare a will, and taking instructions from them, solicitors have a duty to ensure that the person making the will has the requisite capacity to give those instructions. Indeed, the law also says they have a duty of care to those whom the client may wish to benefit under the will, to ensure the will that is prepared, is valid. If, following someone’s death, it is established that the person did not in fact have capacity to make a will, then the will would not be valid.

The golden rule when it comes to capacity

The responsibility of a solicitor in this regard is not a new development. In 1975, the ‘Golden Rule’ was developed in a case called Kenward v Adams. This is not a legal rule, but rather a rule of good practice, although it is given significant weight. It outlines that when a solicitor has doubts as to the capacity of client wanting to make a will, medical opinion should be sought.  The signing of the will ought to be witnessed or approved by a medical practitioner, who should be completely satisfied that the client has testamentary capacity. The medical practitioner will then record this examination and finding, and it will be recorded on the solicitor’s file.

In some cases, this may be a more obvious requirement.  This could be, for example, where a client has dementia, or someone who has an aquired brain injury and has been deemed unable to manage their financial affairs. However, the golden rule also covers clients who are merely ‘aged’ or have a serious illness – which was noted in a subsequent case, Re Simpson (1977).

The importance of the rule

It may not seem an easy task, and indeed perhaps tactless to some, to suggest to someone that a doctor be instructed to check their capacity before their will is made. This is particularly so if they are elderly. However, as indicated above it is incredibly important from a legal standpoint. While it provides no guarantee against the will being challenged successfully, those challenging it will face a significantly more difficult struggle to overturn it, if a proper medical assessment has been undertaken and a doctor witnesses the will.

These issues have come to the surface again in some recent cases, Hawes v Burgess and Ashkettle v Gwinnett. Whilst in the first of those cases, the Court of Appeal did nonetheless accept the evidence of the very experienced solicitor with regards to capacity (and the will was deemed invalid on other grounds), in the second case, the solicitor’s view that he had no concerns, was not accepted by the Court.

The stark consequences resulting from the challenges to testamentary capacity in these cases, are clear. The costs in the Hawes case almost entirely depleted the deceased’s estate, and in in Ashkettle the combined costs amounted to in the region of £200,000.

Even if a solicitor does instruct a GP, a further recent development in the law puts the onus on the Solicitor to ensure that the assessment of capacity is carried out in a timely fashion. It seems that merely instructing the GP is no longer sufficient.

This results from the ruling in Feltham v. Bouskell which re-affirms that point that it is the solicitor taking instructions who is responsible for ascertaining a client’s mental capacity and this includes chasing the GP / medical professional for their report. The Court ruled that the 5 week period between the solicitor instructing the GP and receiving the report was too long and the solicitor should have pursued the report after 10 days. The solicitor’s failure to do so was deemed to be negligent.

How we can help where the client loses capacity?

If a person wanting to make a will does lack capacity, then all is not lost. The law allows for a will to be made on behalf of someone who lacks capacity, by the Court of Protection. Our Court of Protection team deal with many such applications, particularly on behalf of many, but not all, of our brain injured clients. Whilst a lengthy, sometimes complicated, and not inexpensive process, the costs involved would certainly be a lot less than seeing a will challenged by disappointed beneficiaries.

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