The ‘Golden Rule’ was expressed in the judgment of Judge Templeman in Kenward v. Adams (1975) as such:

“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”.

As can be inferred from this phrasing, the golden rule is just a prescription, a rule of good practice. It is not required by law, but it is a guideline that intends to minimize the possibility of a will getting overturned based on lack of testamentary capacity. Even if it’s not observed, lawyers generally agree that the testator should be offered to follow the golden rule and have their medical state and state of mind examined by a medical professional.

When should the testamentary capacity golden rule be observed?

The rule distinguishes two instances when it would be wise to take the precautions: an ‘aged’ testator and one that ‘has suffered a serious illness’. While this may appear straightforward on the face of it, in practice it is more challenging to ascertain whether testators fall within these categories or not.

Since these two categories are given because of their connection with impaired mental capacity, entailing a lack of testamentary capacity, we could say that ‘aged’ should be understood as the age characterized by a statistically increased incidence of capacity-affecting illnesses. The matters would be much simpler but for the facts that 1) a number of illnesses can go without symptoms for considerable periods of time and 2) people can develop illnesses much earlier than suggested by statistics.

This brings us to the issue of serious illnesses. There isn’t an exhaustive list of illnesses capable of affecting testamentary capacity, but it includes Multiple Sclerosis, Parkinson’s, dementia, depression, epilepsy, cerebral tumor, schizophrenia and stroke. However, even diseases which are not directly related to the brain are known to be able to affect the mental capacity of the sufferer. Some of these are HIV and liver or kidney failure.

Then, there are cases where the testator may be cognitively impaired without belonging to either of the two categories stated above. Such is the case with physical, psychological and emotional traumas, use and abuse of drugs and poisoning.

Conclusion

Having explored the implications and challenges presented by the golden rule, we have to go back to the beginning and remind ourselves that this rule is just a good practice guideline. Adhering to the golden rule doesn’t mean that the will is challenge-proof, nor does the failure to follow it mean the will is susceptible to being contested. We can see this in many cases of will contests – at times, the lawyers are criticized for not following the guidelines and sometimes not; other times, when the rule was meticulously seen through, the will gets annulled and finally, even when the will was drafted without observing the rule, it is considered valid in court.

The law relies heavily on the experience and prudence of the lawyer to assess the testamentary capacity of the client. If the attorney suspects that this capacity could be impaired, they will typically observe the golden rule. What is generally needed of the attorney is to make sufficient enquiries and apply their reasoning skills and experience to determine whether 1) the client knows what a will is, 2) what the extent of their property is and 3) how their will is going to affect their family members and relatives.

Signals that would typically and reasonably indicate that a medical practitioner should be summoned to examine the testator and provide a record of the examination are:

• Age,
• Diagnosis of an illness capable of affecting testamentary capacity,
• History of alcohol or substance abuse,
• Physically or psychologically traumatic experience and
• Concerns on the part of the attorney based on their observations of the client’s behavior or concerns expressed by others

The mentioned signals should be taken into consideration in conjunction with the terms of the will – especially where the terms appear controversial or significantly deviate from the previous wills.

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