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Has the Golden Rule lost its gleam? Court of Appeal Upholds Finding that Testator Had Testamentary Capacity in Burns v Burns

on Monday, 23 May 2016.

Eva Burns died on 21 May 2010 and in accordance with her last Will, dated 26 July 2005 ('the 2005 Will'), left her house ('the Property') in equal proportions between her two sons, Colin and Anthony Burns.

An earlier Will, dated May 2003 (‘the 2003 Will’), had instead provided for all of the beneficial interest in the Property to be left to Anthony alone.

Arguing that Eva had lacked testamentary capacity and did not know or approve of its contents, Anthony challenged the validity of the 2005 Will and sought to prove the 2003 Will instead.

The evidence presented by Anthony at the first instance hearing seemed compelling.  A number of Mini Mental State Examinations were presented to demonstrate Eva's cognitive impairment and it was highlighted that Eva had started to attend a specialist day centre in 2004 for people affected by dementia. Furthermore (and somewhat remarkably), the solicitor who drafted the 2005 Will, Mr Walton, was found to be 'oblivious' to the principles of the golden rule and, the court heard, had only engaged in 'idle chit-chat' with Eva, rather than seeking to assess her capacity.

Despite this, the District Judge refused Anthony's claim and upheld the validity of the 2005 Will.

Anthony appealed the decision.

Court of Appeal

The Court of Appeal rejected Anthony's submission that the District Judge was wrong to find that Eva had capacity. Drawing on the rule set out in Parker v Felgate (1883) LR 8 PD 171, the Court held that the evidence clearly raised doubts as to Eva's testamentary capacity both in late 2004 and in July 2005. However, the Judge at first instance had decided the case primarily on the basis that capacity had been established in late 2004, when the instructions were given and the draft Will was approved, finding that Eva had, at the least, capacity to recognise that what she was signing in July 2005 was a Will in the form instructed by her in 2004. The Court was also persuaded by the fact that in this case, Eva had taken a number of very sensible and coherent actions, such as collecting the 2003 Will from her former solicitors and drafting a clear letter of instruction to Mr Walton. Moreover, as the Will was straightforward in its nature, the Court held that a lower level of capacity could be accepted.

The Role of the Solicitor

While the Court concluded that Mr Walton's professional conduct in respect of the 2005 Will 'left much to have been desired', it did not hold that this alone would invalidate the Will. The Court reaffirmed that the golden rule is not a 'touchstone of validity or a substitute for established tests of capacity or knowledge and approval' but instead intended for guidance only.

Ultimately, the Court concluded that, as an experienced solicitor, Mr Walton would have been alert to any issues of capacity and by reading the 2005 Will to Mrs Burns, he was clearly satisfied that she knew and understood its contents.

Golden Guidance

Whilst this is a surprising decision, it is not one which establishes any new legal principles.  Instead Burns v Burns serves as a useful reminder of the difficulties of bringing a challenge to a Will.  In particular, the case shows that where a Will has been drafted and executed by an experienced legal practitioner, a challenge brought against its validity, in many cases, may prove to be an uphill struggle.


For more information, please contact Fiona Lawrence on 0117 314 5389.

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