Clarity on Capacity, an excellent article in the March 2014 STEP Journal, examines how recent court cases have raised questions as to the continued suitability of the “Golden Rule”, which governs the ethical duties UK estate planners have when representing clients with diminished capacity.

Florida ethics Rule 4-1.14 and its ABA model-rules counterpart, Rule 1.14, address the unique ethical challenges faced by attorneys representing clients with diminished capacity. To say this is a “thorny” situation is putting it mildly, especially for estate planners, which means any concrete help we can get navigating these dangerous waters is incredibly valuable.

One way to work the problem is to come at it from the clinician’s viewpoint: what are the indicia of incapacity doctors and other therapists look for when diagnosing and treating adults with diminished capacity? For guidance on this front you’ll want to read a handbook published jointly by the the American Bar Association and the American Psychological Association entitled Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, which I wrote about here.

Another way to work the problem is to come at it from a comparative-law perspective. How do estate planners in other parts of the world deal with this kind of situation? For example, our Rule 4-1.14 and the “Golden Rule” developed by English courts cover the same scenario: an estate planner representing a client with diminished capacity. But what’s interesting about the Golden Rule is its focus on building a record to counter future challenges to capacity in will contest cases. The Golden Rule was established in a 1975 opinion written by judge Templeman in Kenward v. Adams (1975) The Times 29 Nov, and provides 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 finding.

This is excellent practical advice for any estate planner, no matter where on the planet he or she happens to be working.  But how has this rule played out in real life — especially in the litigation context? Has this good advice turned into a trap for the unwary? That’s the focus of Clarity on Capacity, an interesting article published in the March 2014 STEP Journal. It’s eye opening and well worth reading for Florida practitioners. Here’s an excerpt:

[The golden rule] is helpful insofar as it emphasises that solicitors and will writers must do what the circumstances reasonably require to satisfy themselves that the testator has capacity to make the will; that they must do what they reasonably can to prevent the will being challenged on the ground of want of capacity; and that, where the testator is aged or has suffered a serious illness, these duties will commonly require the making of the will to be witnessed or approved by a medical practitioner who satisfies themselves of the capacity and understanding of the testator, and records and preserves their examination and finding. It is especially helpful because recent research has shown how a ‘good social front’ can mislead someone who is not medically trained into thinking that a would-be testator has capacity.

. . .

It is unfortunate, however, that Templeman J expressed himself in sweeping terms, using the words ‘aged’ and ‘has suffered a serious illness’ without qualification. Indeed, he impliedly ruled out exceptions by saying that the precautions should ‘always’ be taken. If the sprightly widow has had a serious illness from which she has fully recovered, it cannot surely be appropriate, still less necessary, for her solicitor to get a doctor to confirm that she has the capacity to give her estate to her children equally.

. . .

A number of recent cases involving testamentary capacity have raised questions on the golden rule . . . In Sharp v Adam [2006] EWCA Civ 449 the rule was observed, but the trial judge held, largely on the basis of the evidence of experts who had not seen the deceased, that the will was invalid, and the Court of Appeal upheld his decision. In Key v Key [2010] 1 WLR 2020 the solicitor who took instructions for the will was strongly criticised for failing to observe the rule. In Wharton v Bancroft [2011] EWHC 3250, although lack of capacity was not pleaded, failure to comply with the rule was raised in support of a plea of undue influence. The judge said that the failure was irrelevant, because the solicitor had been called to make a will for a dying man.

In Hill v Fellowes Solicitors [2011] EWHC 61, a professional negligence claim against solicitors in respect of an inter vivos transaction, the judge said that there was ‘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’.

The remarks of the Court of Appeal in Burgess v Hawes have had their effect. They influenced the judge in Greaves v Stolkin [2013] EWHC 1140, although it was significant in that case that the solicitor who took instructions for the will had asked questions of the testator with a view to establishing his capacity. More importantly, they were usefully explained by the judge in Re Ashkettle (deceased) [2013] EWHC 2125. He said, among other things: ‘Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless.’

No reported case seems to have considered the research already mentioned, which shows how a ‘good social front’ can mislead someone who is not medically trained into thinking that a would-be testator has capacity. In Greaves v Stolkin, this research was mentioned, but the judge apparently thought it was irrelevant to the facts.