Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
In recent years we have noticed an increase in claims being brought which challenge the validity of a will. The reasons for this increase have been previously commented on by many, but the general feeling is that an increasing elderly population, an increase in the diagnosis of medical conditions such as dementia, and even perhaps a growing sense of entitlement by hopeful beneficiaries are all contributing factors.
Testators therefore turn to solicitors or will writers to prepare their will, in the hope that this will reduce problems with potential beneficiaries after they pass away.
However, does instructing a solicitor or professional will writer mean that a will cannot be challenged?
In practice, although challenging a professionally prepared will is difficult, it is by no means impossible, even when all the ‘I’s have been dotted and the ‘T’s crossed.
The most common reasons for challenging a will are that the testator lacked the mental capacity to make testamentary dispositions, did not know and approve the content of their will, or were unduly influenced.
In order to try and reduce litigation where the mental capacity of the testator will potentially become an issue in the future, the Court suggested in the case of Kenward v Adams 1975 CLY that solicitors followed a “Golden Rule” when preparing a will which included:
However, it is emphasised in the case of Key v Key  EWCH 408 (Ch) that even where the Golden Rule is followed, this does not automatically validate a will, nor does the non-compliance with the Rule mean that a will is invalid.
The case of Sharp v Adams  EWCA Civ 449 set out that where a solicitor had taken instructions in “exemplary fashion” and had fully complied with the Golden Rule, that short of conducting a full physiological examination of the testator, the solicitor could not have known that the testator lacked the requisite capacity to make a will.
In the latter case of Burgess v Hawes  EWCA Civ 94, the solicitor had done nothing to comply with the Golden Rule, including allowing the beneficiary to remain in the room with the Deceased, not carried out any formal assessment of the testatrix’s capacity and had no recollection of the meeting with the testatrix. In this case it was found that despite the non-compliance with the Golden Rule, the testator did have the capacity to execute her will.
It has been repeated across an enormous number of cases that failure to comply with the Golden Rule is not determinative of whether someone lacked testamentary capacity. Ultimately, capacity is a question of fact and the Court must decide on the evidence as a whole.
The purpose of the rule is the creation and preservation of evidence as to the wishes of the testator at the time of taking the instructions. It is for the Probate Court to decide on all of the evidence whether the legal requirements of capacity, knowledge and approval and freedom from undue influence are satisfied (Scammell v Farmer  All ER (D) 296).
The pattern of cases therefore suggests that even where a will has been prepared by a professional, if there are circumstances which give rise to concern as to the testator’s wellbeing when instructions for the preparation of the will were taken, and the will was executed (execution is the date on which the testator must have the required capacity), then it is worth investigating all of the circumstances surrounding the preparation of the will, including the time running up to the execution of the will.
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