Just what is the Golden Rule in will dispute cases and does non compliance mean a will is invalid?

This is our reply to a recent enquiry which might assist:

Thanks for your interest in our service. Please see quote from Mr Justice Briggs in Key v Key below. In essence the “golden rule” is a touchstone for best practice. However, it does not mean than where it is not followed a Will is invalid. It may mean that it is suspect or more open to question that it ought to be if the golden rule had been followed and from that, where it is found a will is invalid, the Solicitor who prepared the Will could be vulnerable for a claim against him for the costs of the dispute. By all means come back to me if you require further help or assistance.

The substance of the Golden Rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings: see Kenward v . Adams (1975) Times 29th November 1975; Re Simpson (1977) 121 SJ 224, in both cases per Templeman J, and subsequently approved in Buckenhan v . Dickinson [2000] WTLR 1083, Hoff v . Atherton [2005] WTLR 99, Cattermole v . Prisk [2006] 1 FLR 697, and in Scammell v . Farmer [2008] EWHC 1100 (Ch), at paragraphs 117 to 123.

Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.