top of page
  • Writer's pictureBen Slater

Understanding the Golden Rule of Testamentary Capacity

Introduction



an ia image from a dictionary showign the definition fo testamentar



When it comes to creating a last will and testament, one crucial aspect that often goes overlooked is the testator's capacity. Testamentary capacity is the legal term that refers to an individual's mental and legal ability to make a valid will. The 'Golden Rule' of testamentary capacity, as outlined in the judgment of Kenward v. Adams (1975), has become a cornerstone principle in will-making, especially when dealing with aged or ill testators. This rule is designed to ensure that the testator's intentions are safeguarded and that their will is legally sound.


The Golden Rule of Testamentary Capacity : A Closer Look


The 'Golden Rule' was established by Templeman J. in the case of Kenward v. Adams (1975). This rule is particularly relevant when dealing with aged individuals or those who have suffered serious illnesses. Templeman J.'s statement is clear and unequivocal:

"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 health or social care practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding" (Kenward v. Adams, 1975).


Breaking Down the Golden Rule


  1. Aged Testators and Serious Illness: The 'Golden Rule' primarily applies to two categories of individuals: aged testators and those who have suffered a serious illness. In these cases, the risk of impaired mental capacity may be higher.

  2. Mental Capacity Practitioner Involvement: To adhere to the Golden Rule, a health or social care practitioner should be involved in the process. This practitioner should evaluate the testator's capacity and understanding. Their role is crucial in ensuring that the testator is of sound mind when making the will.


  3. Examination and Documentation: The health or social care practitioner must conduct a thorough assessment of the testator, and they must document and preserve their findings. This documentation serves as evidence that the testator was mentally capable when creating the will.


Rationale Behind the Golden Rule


The Golden Rule exists to protect the vulnerable and to prevent undue influence or coercion in the making of a will. In the case of aged or ill individuals, their mental state may be fragile, making them susceptible to external pressures or manipulation. By involving a medical practitioner, the rule seeks to establish an impartial assessment of the testator's capacity.


In addition, the presence of a medical professional can provide valuable insights into the testator's state of mind, potentially uncovering any signs of confusion or incapacity that may have gone unnoticed otherwise.


Conclusion


The 'Golden Rule' of testamentary capacity, as established in Kenward v. Adams (1975), serves as a vital safeguard in the process of creating a last will and testament. It emphasizes the importance of involving a medical practitioner when dealing with aged or ill testators to ensure that their capacity and understanding are assessed and documented. This rule aims to protect the integrity of the testator's wishes and prevent any potential legal disputes arising from contested wills. In the end, by following this rule, we can uphold the principles of fairness and justice in the realm of estate planning and inheritance.

504 views0 comments

댓글


bottom of page