The Golden Rule and Testamentary Capacity

Whenever a lawyer prepares a will on behalf of a client, they need to be satisfied that the client has the necessary capacity to make a will. The test for testamentary capacity was established in the 1870 case of Banks v Goodfellow. Despite the introduction of the Mental Capacity Act 2005, which sets out a different test for assessing capacity, the court has confirmed that the common law test for testamentary capacity remains. This requires anyone making a will to be able to understand: 

1. the nature of the act and its effects 

2. the extent of the property of which he is disposing 

3. the claims to which they ought to give effect 

They also need to not be suffering from a disorder of the mind that “poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties” in disposing of their assets. 

With more complex family structures and increasing numbers of people experiencing mental health issues and living with dementia, it is more important than ever for lawyers to be inquisitive and vigilant when instructed to prepare a will. In many cases, where there is a clear explanation and justifiable rationale for the way in which the will is being made, it will be sufficient to discuss possible challenges and make and retain a detailed attendance note recording the thinking behind the decisions and the issues discussed. However, where there are any concerns about the testamentary capacity of the testator being challenged, asking appropriate questions and retaining records may not be sufficient. 

This is illustrated in the recent case of Ginger v Mickleburgh (2026). In 2013, the deceased reported that he believed the neighbours were harassing him in an attempt to get him to sell his property at a low value. This led to him being sectioned, and during that time, his daughters and former wife took personal belongings from his home for safekeeping. He believed that his daughters were seeking to have him declared as unable to manage his property so that they could take charge of it. He proceeded to make a will which largely benefited his sister, his nephew and his companion. 

The daughters alleged that he was suffering from insane delusions when the will was made and that this should be set aside. Under intestacy, the estate would be divided equally between the daughters. 

The judge concluded that both at the time that he gave his instructions to his lawyer and when he executed his will, the deceased was suffering from delusions and could not have been persuaded that his daughters might have been acting in good faith towards him. The will was therefore void for want of testamentary capacity and the deceased was ruled to have died intestate. 

The judge made the point that in a situation where the person making the will had been sectioned less than a year earlier, it would have been advisable for the will maker to have followed the golden rule set out by Lord Templeman in 1975. This provides that when making the will of an elderly testator or a testator who had suffered a serious illness, the lawyer should arrange for a medical practitioner to satisfy themself of the testator’s capacity and understanding and make a contemporaneous record of the examination and findings. The evidence of the medical practitioner would then generally be given considerable weight in any subsequent challenge to the validity of the will on the ground that the testator lacked capacity. Although there was a registered mental health nurse present when instructions for the will were given, the nurse was not made aware of the appointment with the lawyer in advance and was not asked to conduct a capacity assessment.  

This case is a stark reminder of the importance of arranging for a formal assessment of capacity to be carried out in situations where there are likely to be disappointed beneficiaries and the lawyer is aware that the client has suffered from mental health issues. 

We are experienced in drafting wills and will be able to facilitate capacity assessments either with your own doctor of the doctor is willing to assist or with a mental capacity specialist to ensure that your wishes are upheld as far as possible. Our Private Client team can be contacted by phone on 020 7613 1402 or by email at privateclient@rfblegal.co.uk