The ‘golden rule’

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Wharton v Bancroft and Others [2011] EWHC 3250 Ch: this case is a typical example of the strong ­feelings that can arise where a ­parent leaves the estate to a ­subsequent spouse, disinheriting the adult children.

To add to the heightened tension in this case, there was a deathbed marriage and a substantial estate of about £4m. Pity the solicitor who had to prepare the will. He realised that competing claims were likely to be made following the death, and he made a full and detailed attendance note on the day following the making of the will based on the handwritten notes he made while taking instructions.

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The testator, George Wharton (78) was a successful businessman who had made his money in caravan parks. He had cohabited with Maureen (63) for 32 years. They had never married and he had not carried out any IHT planning although, following a diagnosis of cancer, he had consulted professional advisers. They had suggested marrying Maureen and he had replied that he was not marrying again until on his deathbed.

On September 22 2008, he was discharged from hospital, knowing that he had only a very short time to live. On 23 September 2008, with professional help, he made a will in expectation of his marriage to Maureen and later that day he married her at home. His will left everything to Maureen excluding his daughters (two from an earlier marriage and one from an extra-marital relationship).

Maureen applied to prove the will in solemn form. His daughters ­unsuccessfully challenged the will on the grounds of lack of knowledge and approval and undue influence by Maureen. They had originally alleged lack of testamentary capacity on the grounds of the deceased’s advanced illness and pain-killing medication but abandoned this argument before trial. However, the essence of their case was that, although the deceased was capable of understanding, he did not in fact make his wishes sufficiently clear to the solicitor who prepared the ‘deathbed’ will, and when the will was read back to him did not understand its effect. In relation to the undue influence allegation, they argued that Maureen had been active in securing the preparation of the will, and that the testator’s illness and drug regime made him vulnerable to the exercise of coercive power, so that very little pressure was required to bring about the desired result.

Norris J found that although the deceased had been terminally ill, he had been a capable testator who had known and approved the contents of the simple will made. Although he had made statements to his daughters suggesting that he would make ­provision for them, these statements were not particularly compelling and disclosed no consistent pattern. His previous wills were similarly varied and revealed no consistent pattern.

There was no evidence of coercion, and it seemed likely that the imminence of death had caused the deceased to reassess his earlier ­statements and testamentary ­dispositions. On the evidence, it was not possible to find that the testator had been coerced into making his will or that the circumstances justified an inference that undue influence had occurred.

The daughters had referred to Key v Key [2010] 1 WLR 2020 where a solicitor was criticised for not complying with the ‘golden rule’ of having the testator's medical attendant satisfy himself as to the capacity and understanding of the testator, and make a contemporaneous record of his examination and findings, because the medical attendant may detect defects in mental capacity which may not be apparent to a friend or professional person.

Norris J said that the golden rule was irrelevant, as capacity was not an issue, and went on to say that the solicitor’s job ‘was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think [the solicitor] is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that "the golden rule" has in the present case anything to do with the ease with which I may infer ­coercion. The simple fact is that Mr Wharton was a terminally ill but ­capable testator’.

Despite the fact that capacity was not in issue - so the comments on the golden rule are obiter - they are helpful for solicitors who often ­struggle with the requirements of the golden rule in the context of modern medical practice.

In an interesting article in the 87th edition of the Newsletter of the Association of Contentious Trusts and Probate Specialists, Norris J made a similar point. He said it was understandable that the rule was not always adhered to and that a failure to adhere to it should not, of itself, be taken to indicate a casual approach to the will-making function.

Norris J also regretted the fact that the parties had not felt able to come to an out-of-court settlement, saying: ‘Given the size of the estate, the unused nil rate tax band, the ready availability of specialist probate mediators at the Chancery Bar, and the ease with which Civil Procedure Rule 57 enables wills to be proved consensually, one might have hoped that a Deed of Family Arrangement might have facilitated a measure of reconciliation and healing between Mr Wharton’s two (or three) families.’The case report does not refer to the issue of costs, which must have been substantial.

Professor Lesley King, College of Law

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