What is The Golden Rule in Will Disputes

Written by Tanya Waterworth, Digital Content Writer

About Our Legal Expert: This content is produced with oversight by Michael Jefferies, Managing Director who has over 30 years’ legal experience.

Why the Golden Rule Matters in Testamentary Capacity

Testamentary capacity is often an area of conflict in contentious probate claims, but what is the Golden Rule in will disputes? While it is not law, the Golden Rule advises that when a testator is elderly or seriously ill, the solicitor preparing the will should arrange for a medical professional to assess and confirm the testator’s capacity. It is a principle which plays an important role in contentious probate as to whether a testator truly understood what they were signing.

So, if there is any doubt about a person’s ability to make a will, the Golden Rule is essentially a best practice guideline and is often referred to in will challenges and probate disputes if issues around capacity are being questioned.

Why the Golden Rule Matters in Contentious Probate

Originating from Kenward v Adams (1975), the Golden Rule exists to protect the testator’s wishes. Therefore, it can become a key factor in a contentious probate case because it directly affects how the court views the circumstances surrounding the creation of the will.

1. It provides strong evidence of mental capacity

When someone is elderly or unwell, family members may later argue that they lacked the mental ability to make a will. A medical assessment carried out at the time the will was signed provides clear, independent evidence that the testator understood:

• What a will is
• What they owned
• Who might expect to inherit
• The decisions they were making

This evidence can be extremely persuasive in a dispute.

2. It reduces the risk of a successful challenge

A will can be challenged on several grounds, but lack of capacity is one of the most common. When the Golden Rule has been followed, it becomes much more difficult for someone to argue that the testator did not understand what they were doing.

The presence of a medical assessment does not necessarily ensure that a will is challenge-proof, but it makes it much harder.

3. It protects unusual or unexpected decisions

Many contentious probate disputes arise because a will contains a surprise:

• A child is excluded
• A new partner receives a large share
• A long‑standing will is changed late in life
• One beneficiary receives significantly more than others

When decisions like these are supported by a medical assessment, it becomes easier to show that the testator made them freely and with full understanding.

4. It creates clarity years later

Probate disputes often happen long after the will was signed. Memories fade, witnesses move away, and solicitors’ notes may be limited. A medical assessment provides a clear record which was taken at the time of making the will and which can be a reliable source as to the testator’s capacity even many years later.

What the Golden Rule Is Not

The Golden Rule is widely discussed in contentious probate and so it is important to be clear about what it does not do.

It is not a legal requirement

A will remains valid even if the Golden Rule was not followed. Many perfectly valid wills are made without a medical assessment. The absence of the Golden Rule simply means that the solicitor must rely on other evidence to show that the testator had capacity.

It is not a guarantee against disputes

Even when the Golden Rule has been followed, a will can still be challenged. A medical assessment helps, but it does not prevent other grounds being used in a probate dispute, such as

• Pressure or influence
• Lack of understanding of the will’s contents
• Suspicious circumstances

The Golden Rule strengthens the evidence, but it does not eliminate the possibility of a dispute.

It is not limited to a specific age

Although it is often associated with older testators, the Golden Rule applies whenever capacity may reasonably be questioned. This could include younger individuals with serious illnesses or cognitive difficulties.

When Should the Golden Rule Be Applied?

Solicitors are encouraged to consider the Golden Rule whenever there is any doubt about the testator’s mental capacity. This may include:

• The testator is elderly
• A testator has a serious or terminal illness
• There are signs of memory loss or confusion
• The will contains unexpected or controversial decisions
• There is a history of family conflict
• The solicitor feels uncertain about capacity

If the testator refuses a medical assessment, the solicitor should clearly record this and take additional steps to document capacity.

How the Golden Rule Influences Contentious Probate Claims

In contentious probate, the Golden Rule often becomes a central point of discussion. It may influences disputes in several ways because it:

1. Strengthens the defence of a will

If the Golden Rule was followed, the party defending the will can rely on the medical assessment as strong evidence that the testator had capacity. This can discourage challenges or lead to early settlement.

2. Supports a challenge when it was ignored

If the Golden Rule should reasonably have been applied but was not, the challenger may argue that the solicitor failed to take appropriate action. While, this does not invalidate the will, it can raise questions about capacity that the court may examine more closely.

3. Shapes the court’s view of the evidence

Courts look at the overall picture, and the Golden Rule is one factor among many. But, it carries weight because it reflects good practice. When it is followed, the court is more likely to view the will as reliable.

Practical Guidance for Families and Executors

If you are defending a will

Evidence that the Golden Rule was followed may considerably strengthen your position. It may reduce the likelihood of a lengthy dispute,, encouraging early negotiation and help demonstrate that the testator’s wishes were respected.

If you are challenging a will

The absence of the Golden Rule does not automatically mean the will is invalid. But it may support an argument if other concerns exist about capacity or the circumstances surrounding the will.

If you are helping someone make a will

Encouraging compliance with the Golden Rule can prevent future disagreements and protect the testator’s intentions.

What To Do Next

The Golden Rule plays a vital role in contentious probate because it provides a clear, practical safeguard when capacity may be questioned. So, if you are involved in a potential challenge, it is advisable to discuss your concerns early with a contentious probate solicitor.

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