Will Disputes: The Golden Rule and Challenging Wills 

If you are concerned that someone close to you was vulnerable or unwell at the time of making their will, you can consider challenging a will on the grounds that the testator lacked the required testamentary capacity at the time of the wills execution. 

In determining whether someone had the required mental capacity at the time of making their will, the courts will apply the following test. It is important to note that this test is a legal test and not a medical one. 

The court will ask the following questions: 

• Did the testator understand that they were making a will and its effect? In other words, at the time of execution, did the testator know that they were making a will and that this would mean that the will would determine how their estate would be distributed upon his or her death?  

• Did the testator know the extent of their estate? Did they know what assets both real and personal they owned? 

• Did the testator consider those closest to them when deciding who benefited under their will? Did the testator understand and appreciate those persons who you would normally expect to be provided for under the terms of a will such as any dependent children? 

These questions will be examined based upon the individual facts of the case and it will be on this basis that the court decides the issue of whether the testator had testamentary capacity or not. 

What emphasis does the court place on medical evidence?

Medical evidence is influential in assessing testamentary capacity; however, the court will attach importance to evidence provided by the family members of the deceased, the circumstances surrounding the wills execution and the practices followed and applied by the solicitor when drafting the will.  

In the often-quoted case of Kenward v Adams [CLY] 1975 3591 which took place in the United Kingdom in the 1970s, it was outlined by the court that in the event that a solicitor has any doubt concerning the capacity of an “aged or seriously ill testator”, then and in that event a  medical practitioner should be present at the time of the wills execution. This was subsequently referred to as the ‘Golden Rule’ in the United Kingdom and has been referred to in decisions in this jurisdiction (see Laffoy J.  Scally v Rhatigan [2010] IEHC 475). The ‘Golden Rule’ is not a rule in the proper sense of the word and is in fact a guide as to best practice when taking instructions from a testator where there have been concerns raised over a person’s mental health.  The rules purpose is to “assist in the avoidance of disputes or at least in the minimisation of their scope”. 

It is clear from the caselaw that the factors examined when assessing  a testator’s capacity at the time of a wills execution will centre on far more than medical evidence and any medical evidence adduced at a hearing will not necessarily be decisive when considering the capacity of the testator. You should note that a will that appears to be entirely rational on its face carries with it a presumption that the testator had capacity at the time of its execution. This presumption may be rebutted by submitting evidence to the contrary. 

What steps can you take to challenge a will on the grounds that the testator lacked capacity? 

The first step is to gather as much information as possible, take statements, obtain medical records and reports. Gather as much information as possible from those who were close to the testator at the time the will was drawn up. It will be necessary to take up the file of the solicitor who drafted the will in order to review what practices were followed at the time the will was executed. If you would like to challenge a will on the basis that a testator did not have capacity at the time of executing a will, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at [email protected]