The Golden Rule
Date: 20 February 2009
Authors: David Catchpole
Issue: Vol 159, Issue 7357
Categories: Features, Legal services, Other practice areas, Wills&probate
There is a good degree of knowledge in the legal profession about the so called golden but tactless rule where the capacity of a testator may be in issue. However, while the vast majority of probate practitioners are aware of the rule, fewer appear to follow it in practice. Telling your client, who you may have represented for numerous years, that you have concerns about their mental faculties is never easy—and many solicitors will shy away from this very difficult conversation. It is a conversation that may well lose a client (and potential fee income) as a result. Further, some practitioners may feel it is better to prepare a will and risk a fight in future over capacity, than to refuse to prepare a will and risk a possible professional negligence claim for not following their client’s instructions. Will preparation is a competitive business and a solicitor refusing to prepare a will for a client whose capacity he questions knows that the client could seek advice elsewhere from someone else less scrupulous perhaps s. Even where a solicitor follows the golden rule and suggests that their client should have his capacity assessed, a testator may (understandably) resent having to take a test. They may simply refuse. Does the solicitor in that situation prepare the will regardless or refuse to act? The answer to this no doubt varies from firm to firm and from practitioner to practitioner.
Consulting a GP
If a testator is referred to a medical practitioner, the first port of call is usually someone who knows them—generally their GP. The Banks v Goodfellow (1871) LR 11 Eq 472 test for establishing testamentary capacity is well known by those who deal with this area of law. However, it is perhaps less well known by a number of GPs whose practice is, by definition, general. Solicitors instructing GPs to prepare a report on capacity should therefore be explicit in referring to the Banks v Goodfellow test and set out what the test entails. A useful pro-forma letter to GPs is on the Association of Contentious Trust and Probate Specialists’ (ACTAPS) website.
Of course, many GPs are perfectly familiar with the Banks v Goodfellow test and do an excellent job of assessing capacity. Others are concerned at their lack of expertise and may refer the testator to a specialist, such as an old age psychiatrist. Such a referral, while understandable, gives the hesitant testator another opportunity to delay, refuse or seek advice elsewhere.
Where a busy GP does agree to provide a report, this sometimes tends to be rather short and non-specific. Tests may be done, but are not always the standard mini-mental state examination (MMSE) which really ought to be carried out. Even when the MMSE is undertaken, the scores are open to differing interpretation. A testator who achieves a low score may not lack capacity—but could perhaps lack concentration at the particular time the test was carried out or object to the process and so be difficult deliberately. Conversely, getting a high score does not necessarily prove capacity. However, the results of such a test are useful evidence to place in the metaphorical scales when weighing up the arguments for and against capacity.
Retrospective reports
The obvious advantage of seeking medical evidence during the testator’s lifetime is that the practitioner can see and assess the person. If the test is carried out by someone who has known the testator over a long period, so much the better. However, in a large number of cases which reach the courts, the testator has not been formally assessed during their lifetime. In these cases the parties frequently instruct specialist medical experts to prepare retrospective reports. Such reports are usually provided by an array of eminent and distinguished experts in the field. Of course, these experts are at a major disadvantage in that they never saw the testator. They can only rely on whatever evidence is placed before them. This generally includes the testator’s medical records and frequently lay witness statements from those who knew the testator. Where a testator was elderly or ill towards the end of their lives, it is common to find that they have spent at least some time in hospital. In such cases, there are often large reams of medical notes. These can sometimes provide useful nuggets of information which either side in the dispute will latch on to. Comments such as “confused and disorientated” or “alert and responsive” are seized upon as appropriate.
Medical records rarely give any detailed picture on a person’s mental as opposed to physical state. Hospital staff are of course very busy and have little time to consider whether the estate of the patient they are treating may later be the subject of a probate dispute. Approaches I have made to such staff seeking information over a patient’s capacity have not always been well received. Staff are hesitant about giving any form of evidence—partly as they are busy people, partly as they deal with hundreds of individuals and recollections may therefore be foggy, but to an extent no doubt from a fear of being somehow implicated in a negligence action against them or the hospital if they were seen to have treated a patient improperly or without informed consent.
After considering any available medical notes, the retrospective expert usually looks next at any lay witness evidence. In preparing his report, the expert is bound to be influenced to a degree by the picture of the testator painted by those who knew him. The real risk in doing so to any great extent is that the evidence being reviewed is untested and is frequently being given by someone with a vested interest in the outcome of the probate action. An expert therefore has to be extremely cautious as to how much weight he places on this evidence.
Medical experts will often be called to give evidence orally at trial. Sometimes, perhaps where the amount at stake is high, they may even sit through the entire trial and so have an opportunity to hear the lay witnesses give evidence. Should they then form a view as to how truthful any witness has been and tailor their conclusions accordingly? Assessing the truthfulness or otherwise of lay witnesses is of course a role for the court, not the expert. The court is very mindful of this difficulty and is wary of placing too much reliance on such retrospective medical evidence.
Once armed with an expert’s report which backs their arguments, a client’s resolve that they are right usually strengthens. Clients should, however, be warned they cannot expect to win a case just because a report from a recognised expert supports their position. Frequently in testamentary capacity cases one side’s retrospective expert will conclude that there was capacity, yet the other’s expert will not. Capacity is time and event specific.
Evidence from those who were present at the time instructions were given for the will and when it was executed is crucially important. An added difficulty is that in many probate cases, it is the evidence of those present when instructions are given and when the will is executed that is also being questioned. In such cases, the court has the difficult role of assessing all the evidence in the round in reaching its decision and can really only assess how believable the lay witnesses are at trial.
Best practice
Where there is any indication that a testator’s capacity may be questioned, good practice must be to invoke the golden rule. At the very least, solicitors taking instructions for and preparing a will should take detailed attendance notes. So often disputes in this arena could be avoided if the practitioners involved took those steps. Clients should be advised of the pitfalls of executing a will where it is possible their capacity may be questioned later. Surely it is easier to implement the golden rule by suggesting to a client that a medical report needs to be carried out to minimise the risk of a later action, than to expressly question capacity.
The way forward
The number of contested probate actions continues to rise, but is there a way to stop this increase? Getting solicitors to follow the golden rule must be the key, but for the reasons set out above this can be treated more like an exception than a rule. It would be far too draconian to suggest that all testators over a certain age should be subjected to a capacity assessment. The solicitor in question must use his professional judgment as to whether to invoke the rule.
Perhaps a stronger sanction, or any sanction at all, against those solicitors w ho fail to follow the golden rule in the most obvious cases, might result in fewer cases getting to court. At present the court seems hesitant about criticising solicitors who fail to take such action.
Unless and until the situation is remedied, many cases will be referred to retrospective medical experts for analysis.
The role of such experts in trying to assess whether someone they never met had capacity at a particular time on a particular date, which may have been many years ago, is clearly not an easy one. While faced with the same facts and evidence, it is therefore not surprising that different experts often reach different conclusions— what is perhaps more surprising is that so many experts are able to reach definitive conclusions at all.
There is no easy solution. Getting detailed medical evidence at the time of will preparation and execution is crucial (although in itself not necessarily determinative). Good attendance notes will assist, but ultimately it is for the court to place all the factors in the scales before it can draw any conclusions. This makes predicting the outcome of testamentary capacity cases very difficult in all but the most clear cut examples and perhaps
explains why so many cases go to trial. Virtually all testamentary capacity cases involve a question of degree. As Lord Cranworth famously observed, there is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.
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