There have been some rather unusual recent cases that invite comment.

In Bayes-Walker and another v Bayes-Walker and others [2010] EWHC 3142 (Ch) the High Court made a declaration that a missing RAF sergeant was to be presumed dead for the purposes of rights to a life insurance policy and investments.

Under English law, there is a rebuttable presumption of death of a person after seven years where those who would be likely to have heard of him have not in fact heard of him.

However, it is necessary to show that all due enquiries have been made suitable to the circumstances before the presumption arises.

Warren J said that it is not appropriate to make a general declaration having effect for all purposes that a person is dead, or is to be presumed dead, but that the court can make orders for specific purposes – as he did here.

The case illustrates what has to be done to obtain such an order.

The evidence before the court consisted of statements from the people who would be likely to have heard from the missing person, explaining that they had heard nothing from him, plus details of all the organisations that had been contacted in an attempt to ascertain his whereabouts.

The missing person was made a defendant to the application and the Master made an order for substituted service designed to ensure so far as possible that, if he were still alive, notice of the proceedings would come to his notice.

The order required an advertisement to be placed in a newspaper circulating in the town where the deceased had last been heard of.

In Official Solicitor to the Senior Courts v Yemoh [2010] EWHC 3727 (Ch) the court was asked to consider the way in which the intestacy rules work in relation to polygamous marriages.

The deceased had died intestate domiciled in Ghana and owning various properties, including property in England.

He was party to a number of polygamous marriages under Ghanaian customary law and the court had to decide whether the surviving wives fell within the category of 'surviving spouse' for the purposes of entitlement on intestacy.

Where someone dies intestate leaving a surviving spouse and issue, the surviving spouse is entitled to a statutory legacy and a life interest in half the residue (section 46 of the Administration of Estates Act 1925).

The court held that any spouse who had been lawfully married in accordance with the law of the place of an intestate's domicile was entitled to be recognised in England as a surviving spouse for this purpose.

The surviving spouses together constituted the ‘spouse’ for the purposes of section 46.

Therefore, they would share one statutory legacy as beneficial joint tenants. Similarly they would share the total life interest until the death of the last of them, when that half of residue would fall in for the benefit of the children.

Medical evidence

Private client practitioners are all familiar with the ‘golden rule’.

A series of cases starting in 1975 with Kenward v Adams [1975] CLY 3591 set out the so-called rule, the first part of which is as follows:

‘…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 medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.’

In Rudyard Kipling Thorpe (Litigation Friend of Leonie Leanthie Hill) v Fellowes Solicitors LLP [2011] EWHC 61 (QB) the court took a rather different approach to the issue of elderly clients.

Sharpe J dismissed a claim that a firm of solicitors had acted negligently in their dealings with an elderly lady, Mrs Hill, who was suffering from dementia.

Mrs Hill had instructed the firm to sell her house. Her son now alleged that the firm sold the house without proper instructions from Mrs Hill, as a result of her dementia; that it was sold at an undervalue; and that, in breach of duty the firm remitted the proceeds to Mrs Hill’s daughter.

The solicitor’s attendance note stated that Mrs Hill ‘fully understood what was going on and was adamant that she wants to sell this property and purchase another property with her daughter so that she does not have to deal with any maintenance of the house’.

The jointly instructed medical expert said that although Mrs Hill had dementia at the material times, ‘dementia is not an all or nothing phenomenon’.

His conclusion was that although Mrs Hill had cognitive problems that might have interfered with her decision ­making, she still had capacity to give instructions in relation to the sale.

He was also of the view that her lack of capacity would probably not have been apparent to a competent solicitor.

Sharpe J found that none of the alleged breaches of duty were made out.

While Mrs Hill suffered from a progressive form of dementia, in itself that did not mean that she lacked capacity to give instructions, or the ability to exercise her free will or that any lack of capacity would have been evident to a reasonably competent solicitor.

There was no evidence that the solicitor knew that Mrs Hill was suffering from dementia, or ought to have appreciated this was the position.

Sharpe J said that a solicitor is generally not required to make enquiries as to a person's capacity to contract unless there are circumstances such as to raise a doubt in the mind of a reasonably competent practitioner.

‘I should add (since at least part of the claimant's case seemed to have suggested, at least implicitly, that this was the case) that there is plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity.

'Such a requirement would be insulting and unnecessary.’

While the decision cannot throw doubt on the golden rule, it is certainly interesting to see a different approach.

Professor Lesley King, College of Law