What is the Golden Rule in Probate? A Specialist’s Guide to Solicitor Negligence and Capacity

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The Golden Rule is a legal best-practice established in the case of Kenward v Adams [1975]. It dictates that when a solicitor drafts a Will for an aged or seriously ill testator, they should seek a medical practitioner’s opinion to certify testamentary capacity and have that professional witness the execution.

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Why “The Golden Rule” is the Skeptic’s Best Weapon

When a Will is drafted by a solicitor, the court usually presumes it is valid. However, as validity specialists, we know that solicitors are not medical experts. The Golden Rule exists to prevent “amateur” capacity assessments.

If you are “Attacking the Document,” your first question must be: “Did the solicitor follow the Golden Rule?” If the testator was elderly, hospitalized, or showing signs of confusion, and the solicitor failed to involve a doctor, the “presumption of validity” is severely weakened.

The Origin: Kenward v Adams and Templeman J

The rule was famously articulated by Mr. Justice Templeman. He stated that the making of a Will by an aged or seriously ill person “ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator.”

For “The Skeptic,” this means that a solicitor’s witness statement is not the final word. If they didn’t bring in a GP or a psychiatrist to verify the “4 Limbs of Capacity,” they have left the door open for a validity challenge.

When Does the Golden Rule Apply?

The Rule is not a law, but a “rule of solicitors’ prudence.” It is triggered in specific scenarios:

  • Advanced Age: There is no specific age, but typically testators over 80 should be assessed.
  • Serious Illness: If the testator is in a hospital, hospice, or under palliative care.
  • Recent Bereavement: If the testator recently lost a spouse and may be in a state of shock or extreme vulnerability.
  • Radical Changes: If a new Will suddenly disinherits long-term beneficiaries in favor of a new “friend” or caregiver.

The “Larke v Nugus” Request: Investigating the Solicitor

To prove the Golden Rule was ignored, we must see the solicitor’s “attendance notes.” We do this via a Larke v Nugus request.

We look for evidence of:

  • Did the solicitor meet the testator alone? (To rule out undue influence).
  • Did the solicitor ask open-ended questions about assets?
  • The Crucial Entry: Did the solicitor make a note of why they didn’t think a medical report was necessary?

If the notes are thin or non-existent, the solicitor has failed their duty, and the Will is “under a cloud of suspicion.”

Medical Witnessing: The “Gold Standard” of Execution

The Rule suggests that the doctor should not just “check” the patient, but actually witness the signature. This prevents the “Lucid Interval” argument from being easily used by the defense. If a doctor signs as a witness, they are confirming that at the exact moment of signing, the testator met the Banks v Goodfellow criteria.

If this did not happen, we can argue that the testator may have been lucid at 10:00 AM during the interview but confused at 2:00 PM during the signing.

The Risk of Not Following the Rule

Solicitors often skip the Golden Rule to “save time” or “save the client money.” However, the UK High Court has repeatedly criticized solicitors for this. In the case of Sharp v Adam [2006], the court set aside a Will because the solicitor’s assessment of capacity was deemed insufficient compared to the medical reality of the testator’s MS.

As a Validity Specialist, we use these precedents to show that professional drafting does not guarantee a valid Will.

Challenging a Will When the Rule was Ignored

If you find that the Golden Rule was breached:

  1. Secure the File: Use a Larke v Nugus request.
  2. Commission a Retrospective Report: Since no doctor was present then, we hire one now to review the medical records.
  3. Lodge a Caveat: Stop the Grant of Probate while the solicitor’s conduct is reviewed.

Arm Yourself with Knowledge

To understand the professional standards solicitors are expected to follow, you can review the SRA (Solicitors Regulation Authority) Code of Conduct
regarding client capacity. Additionally, for a deeper look at medical-legal guidelines, refer to the British Medical Association (BMA) guidance on assessing mental capacity.

Dealing with the “Urgency” Excuse

Solicitors often argue they didn’t follow the Golden Rule because the testator was “near death” and they had to act quickly. While the court recognizes urgency, it does not excuse a total lack of capacity checking. If the testator was so near death that a doctor couldn’t be found, were they truly “of sound mind” enough to understand a complex legal document?

The Interplay Between Undue Influence and the Golden Rule

Often, the breach of the Golden Rule is the “smoking gun” for Undue Influence. If a beneficiary “helped” an elderly person find a new solicitor and that solicitor failed to call a doctor, it suggests a coordinated effort to bypass the testator’s true intentions.

The Evidentiary Weight of the “Contemporaneous Attendance Note”

In the absence of a medical professional, the court turns its forensic gaze toward the solicitor’s “Attendance Note”, the private record of the meeting. As a Validity Specialist, we scrutinize these notes for more than just a summary of wishes; we look for a “mental status exam in prose.” A legally robust note should record the testator’s specific reactions, their ability to recall the value of their properties without prompting, and their reasoning for any radical departures from previous Wills.

If the note merely states “the client appeared of sound mind,” it is a hollow conclusion. We argue that such “conclusory” notes provide no evidence of a functional assessment, especially if they fail to document the testator’s awareness of the specific “moral claims” they were choosing to ignore. By highlighting the thinness of these records, we can effectively dismantle the solicitor’s credibility as a witness to capacity.

Post-2005 Evolution: The MCA and the Golden Rule

Since the implementation of the Mental Capacity Act 2005 (MCA), the application of the Golden Rule has become even more complex. While Banks v Goodfellow remain the primary test for Wills, the MCA introduces a statutory framework that solicitors often confuse with the common law test. This confusion is a “validity trap.” If a solicitor incorrectly applies the MCA’s “presumption of capacity” as an excuse to avoid calling a doctor for an elderly client, they may be neglecting the more stringent “duty of inquiry” required by the Golden Rule.

As your Validity Specialist, we exploit this procedural friction. We argue that the solicitor’s reliance on the broad “presumption” allowed them to ignore clear red flags of cognitive decline, thereby failing to protect the testator from an invalid execution. This intersection of statutory and common law creates a high-level technical ground upon which “The Skeptic” can successfully challenge a professional’s conduct.

Hold the Professionals Accountable

The Golden Rule is there to protect the deceased from making mistakes and to protect the family from fraud. If a solicitor cut corners, they have put the entire estate at risk.

For a complete look at the legal requirements, see our Complete Guide to Contesting a Will on Grounds of Lack of Capacity.

Download The ‘Stop Probate’ Checklist to ensure you pause the process while we investigate the solicitor’s file.

FAQs

1. If a solicitor followed the Golden Rule, can I still challenge the Will?

Yes. While a medical report makes a challenge harder, it is not “conclusive.” A doctor might perform a cursory check that doesn’t meet the specific legal requirements of Banks v Goodfellow. If you have evidence of “insane delusions” that the doctor missed, the Will can still be set aside.

2. Does a GP have to provide a capacity report for free?

No. GPs are entitled to charge a fee for a capacity assessment and for witnessing a Will. Many families see this as an unnecessary expense, but as a Validity Specialist, we argue it is “probate insurance.” If the fee wasn’t paid and the Will is now contested, the cost of litigation will be thousands of times higher than the GP’s fee.

3. What if the solicitor says the testator “seemed fine”?

A solicitor’s subjective opinion that someone “seemed fine” is frequently rejected by the courts if there is competing medical evidence of cognitive decline. The Golden Rule exists specifically because solicitors are not trained to spot the subtle nuances of dementia or the effects of medication on the “testamentary mind.”

Let’s Do This Together

Contesting a will could become an overwhelming experience if not accompanied by expert guidance and support. Our mission is to provide you with all the needed information, support, and authority to get through this journey, with only one goal in mind: Justice.

To our team, this process is not about winning; it’s about claiming what was yours from the beginning.

Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com

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Frequently asked questions.

Disputes over wills can arise in several circumstances, including:

  • Testamentary capacity: The person who made the will (known as the testator) must have had the mental capacity to understand what they were doing and the consequences of their actions. This means that they must have been able to understand the nature and extent of their property, the people they were giving their property to, and the people they were excluded from their will.

 

  • Valid execution: The will must have been executed correctly under the law. This means it must be in writing, signed by the testator, and witnessed by two independent witnesses.

 

  • Undue influence: The testator must have made the will freely and without any pressure from others. The will may be invalid if someone was unduly influenced to make a will. Undue influence can occur when someone takes advantage of a testator’s vulnerability, such as if the testator is elderly, ill, or has a mental disability.

 

  • Fraud or forgery: If the will was forged or if someone fraudulently induced the testator to make the will, the will may be invalid.

 

Claims against a will must usually be made within six months of the grant of probate being issued. This is the legal document that gives the executor the authority to administer the estate. If a claim is not made within this time, it may be too late to challenge the will.

As such, executors often wait until this six-month period has expired before distributing the estate. This is to avoid having to distribute the estate and then having to take it back if a successful claim is made against the will.

Here are some examples of how these disputes can arise:

  • A family member may dispute a will if they believe that the testator did not have the mental capacity to make a will. For example, if the testator was suffering from dementia or Alzheimer’s disease at the time the will was made.
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A family member may dispute a will if they believe that it was not executed correctly. For example, if the will is not signed by the testator or if it is not witnessed by two independent witnesses.

 

  • A family member may dispute a will if they believe that they were unduly influenced to make the will. For example, if a caregiver or another family member pressured the testator to make the will in their favour.

 

  • A family member may dispute a will if they believe that it was forged or if someone fraudulently induced the testator to make the will. For example, if someone forged the testator’s signature on the will or if someone lied to the testator about the contents of the will.

If you are thinking about disputing a will, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.



Types of Trusts

Many different types of trusts can be set up, depending on your specific needs and goals. Some of the most common types of trusts include:
Bare Trusts: A bare trust is a simple type of trust in which the trustee holds the assets for the benefit of the beneficiary. The beneficiary is entitled to the income and capital of the trust as soon as they are old enough to receive them.

Interest in Possession Trusts: An interest in possession trust is a type of trust in which the beneficiary is entitled to the income from the trust immediately, but not to the capital until a later date. This type of trust is often used for minor beneficiaries or for beneficiaries who are not yet responsible enough to manage their own money.

Discretionary Trusts: A discretionary trust is a type of trust in which the trustee has the discretion to decide how and when to distribute the income and capital of the trust to the beneficiaries. This type of trust is often used for families with multiple beneficiaries or beneficiaries with special needs.

Accumulation Trusts: An accumulation trust is a type of trust in which the income from the trust is accumulated and not distributed to the beneficiaries until a later date. This type of trust is often used to save for a specific purpose, such as a child’s education or a retirement fund.

Mixed Trusts: A mixed trust is a type of trust that combines elements of different types of trusts. For example, a trust may be a discretionary trust for one beneficiary and an interest in possession trust for another beneficiary.

Settlor-Interested Trusts: A settlor-interested trust is a type of trust in which the settlor (the person who creates the trust) retains some interest in the trust assets. For example, the settlor may retain the right to receive income from the trust or to appoint the trustee.

Non-Resident Trusts: A non-resident trust is a type of trust that is created and governed by the laws of a country other than the country where the settlor or beneficiaries reside.
Which type of trust is right for you will depend on your specific needs and goals. It is important to consult with an estate planning attorney to discuss your options and choose the type of trust that is best for you.
Here are some examples of how different types of trusts can be used:
A bare trust can be used to hold assets for a minor child until they reach the age of majority.

An interest in possession trust can be used to provide income to a beneficiary who is not yet responsible enough to manage their own money.

A discretionary trust can be used to manage assets for a family with multiple beneficiaries or for beneficiaries with special needs.

An accumulation trust can be used to save for a specific purpose, such as a child’s education or a retirement fund.

A mixed trust can be used to achieve a variety of different goals, such as providing income to one beneficiary and preserving capital for another beneficiary.

A settlor-interested trust can be used to retain some control over trust assets after the settlor has created the trust.

A non-resident trust can be used to reduce estate taxes or to protect assets from creditors.
It is important to note that this is just a brief overview of the different types of trusts. There are many other types of trusts available, and each type of trust has its own specific features and benefits. For more information please visit www.gov.uk/trusts-taxes/types-of-trust

Inheritance trust disputes can be complex and varied, but some common scenarios include:

  • Disputes over the validity of the trust: This can happen if the settlor (the person who created the trust) does not have the mental capacity to create a trust, or if the trust deed was not executed correctly.

 

  • Disputes over the interpretation of the trust deed: If the trust deed is poorly drafted or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • Disputes over the appointment or removal of trustees: Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee is not acting in the best interests of the beneficiaries, the beneficiaries may apply to the court to have the trustee removed.

 

  • Disputes over the investment of trust assets: Trustees have a legal duty to invest trust assets prudently. If a trustee makes investments that are too risky or that lose money, the beneficiaries may sue the trustee for breach of duty.

 

  • Disputes over the distribution of trust assets: Trustees have a legal duty to distribute trust assets to the beneficiaries in accordance with the terms of the trust deed. If a trustee distributes trust assets incorrectly, the beneficiaries may sue the trustee for breach of duty.

 

Here are some specific examples of inheritance trust disputes that have occurred in the UK:

  • In one case, a beneficiary disputed the validity of a trust deed on the grounds that the settlor (the person who created the trust) did not have the mental capacity to create a trust at the time it was set up.

 

  • In another case, a beneficiary sued the trustees for breach of duty after the trustees made a number of risky investments that lost money.



  • In a third case, a beneficiary sued the trustees for breach of duty after the trustees distributed trust assets to the beneficiaries in a way that was not in accordance with the terms of the trust deed.

 

Other possible disputes include:

  • A beneficiary was expecting more than what is set out in the trust document. This may be because the beneficiary had a reasonable belief that they would receive more, or because the trust document is unclear about the beneficiary’s entitlement.

 

  • The individual who set up the trust was provided with negligent or misleading advice. If the settlor was not properly advised about the consequences of setting up a trust, or if they were given incorrect information, they may be able to challenge the trust.

 

  • The trust document is either incomplete or unclear about the wishes of the deceased. If the trust document is incomplete or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • A trustee acts against the best interests of the beneficiary or doesn’t administer the trust correctly. Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee breaches their duty, the beneficiaries may sue the trustee.

If you are involved in an inheritance trust dispute, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

Contesting a will is challenging the validity of a will. This can be done on a number of grounds, including.

  • The testator (the person who made the will) did not have the mental capacity to make a will.
  • The will was not executed correctly, i.e., it was not signed by the testator or witnessed by two independent witnesses.
  • The testator was unduly influenced to make the will.
  • The will was forged or fraudulent.

 

Contentious probate is any dispute about the administration of a deceased person’s estate. This can include disputes about

  • The validity of the will.
  • The interpretation of the will.
  • The appointment or removal of executors.
  • The distribution of the estate assets.
  • The management of the estate.
  • In the UK, contentious probate is dealt with by the High Court.

 

The main difference between contesting a will and contentious probate is that contesting a will is specifically challenging the validity of the will, while contentious probate can include a wide range of disputes about the administration of an estate.

Here is an example:

Contesting a will: A beneficiary challenges the validity of a will on the grounds that the testator did not have the mental capacity to make a will.

Contentious probate: A beneficiary disputes the interpretation of a will and argues that they are entitled to a larger share of the estate than they have been given.

It is important to note that the two terms are often used interchangeably. For example, a lawyer might say that they are “dealing with a contentious probate matter” when they are actually challenging the validity of a will.

If you are thinking about contesting a will or pursuing a contentious probate claim, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

The time limit for making a contentious probate claim in the UK is six months from the grant of probate. This is the legal document that gives the executor the authority to administer the estate.

If you do not make your claim within this six-month time limit, you may need to apply to the court for permission to make a late claim. The court will only grant permission if you have a good reason for not making your claim on time.

There are a number of factors that the court will consider when deciding whether to grant permission for a late claim, including:

  • Why did you not make your claim on time?
  • The strength of your case.
  • Whether the other beneficiaries will be prejudiced if your claim is allowed to proceed.
  • If the court grants you permission to make a late claim, you will need to file your claim within 28 days.

 

It is important to note that there are some exceptions to the six-month time limit. For example, if the executor has committed fraud or concealed assets from the beneficiaries, the beneficiaries may be able to make a claim after the six-month time limit has expired.

If you are thinking about making a contentious probate claim, it is important to seek legal advice as soon as possible. A lawyer can assess your case and advise you on the time limits that apply and whether you have a good case.

Here are some examples of when you might be able to make a late contentious probate claim:

  • You were not aware of the death of the deceased until after the six-month time limit had expired.
  • You were unable to make your claim on time because you were ill or incapacitated.
  • The executor has deliberately concealed information from you about the estate.
  • The executor has committed fraud in the administration of the estate.

 

The 12-year limit for making a contentious probate claim in the UK applies to claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. This means that if you are making a claim for financial provision from an estate, you must do so within 12 years of the date of the deceased’s death.

The reason for the 12-year limit is to encourage people to make their claims as soon as possible after the deceased’s death. This is because it can become more difficult to investigate and prove a claim after a long period of time has elapsed.

If you are unsure whether you are able to make a late contentious probate claim, you should seek legal advice.

Most disputes in the UK are resolved out of court through mediation and negotiation. This is because it is generally faster, cheaper, and less stressful for all involved.

If you are considering disputing a will, it is important to contact a contentious probate specialist before you involve any other relatives or beneficiaries of the estate. A specialist lawyer can advise you on your legal options and help you to resolve the dispute quickly and efficiently.

Here are some of the benefits of resolving a will dispute out of court:

  • It is faster and cheaper than going to court.
  • It is less stressful for all involved.
  • It allows you to maintain relationships with other family members and beneficiaries.
  • You have more control over the outcome of the dispute.

 

There are a number of steps that you can take to try to resolve a contentious probate dispute without going to court, including

  • Negotiation: You can try to negotiate a settlement with the other parties to the dispute. This may involve making concessions on your part, but it can be a good way to avoid the time and expense of court proceedings.
  • Mediation: Mediation is a process where an independent mediator helps the parties to reach a mutually agreeable settlement. Mediation can be a good way to resolve a dispute without going to court, but it is important to note that it is not binding on the parties.
  • Arbitration: Arbitration is a more formal process than mediation, and it is binding on the parties. However, it can still be a good way to resolve a dispute without going to court.

 

If you are unable to resolve the dispute amicably, you will need to file a claim with the High Court. The court will then hold a hearing to decide the case.

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