Once again a High Court judge, with probably little (if any) experience of making wills for elderly persons, has used the phrase ‘the golden rule’ in stating that a doctor should always be involved to confirm capacity (Kenward v Adams, letters, 12 August).
There are numerous practical objections to that unhelpful edict, some of which are:
1. The solicitor would run the risk of seriously offending the client.
2. The client might go elsewhere.
3. It is difficult enough to get a doctor these days to attend to oneself, let alone visit a client for what many doctors would perceive to be a non-medical reason.
4. In many cases a doctor would have little (or no) knowledge of the client’s financial affairs and could be disqualified from making a judgement on that account.
5. The cost of making a will would significantly increase. Time would increase.
6. As a result, some clients would not take the matter further and consequently their wishes would not be implemented.
7. The client might die in the meantime.
8. To give an example of a recent case, a child (who stood to benefit from an existing will) managed to frustrate the doctor’s attendance. When later the client died, there was a difference of opinion between two doctors as to whether the client had been mentally fit to make a later will.
We cannot see why it seems to be assumed by the judiciary that a doctor’s ability to judge mental capacity is greater than that of a solicitor. Where we perceive that there may be a capacity problem, either two solicitors or a solicitor accompanied by a magistrate attend the client and make the requisite notes. The rule should be renamed ‘the bronze rule’.