The Golden Rule – Burns

Burns v Burns [2016] EWCA Civ 37

The Golden Rule

Originally outlined by Templeman J in the 1970s, ‘the Golden rule’ relates to the caution a Solicitor or other professional must take when drafting a Will for an elderly or sick client as there will undoubtedly be concerns or doubts about such a client’s testamentary capacity, or the ability to make their own decisions with regard to their Will.

In such cases, a Solicitor should seek an opinion of a medical professional in order to ensure the client has sufficient mental capacity to not only give instructions but to also prepare and execute a Will.

In the recent case of Burns v Burns [2016] EWCA Civ 37, the Court of Appeal helpfully looked at the law surrounding the correct application of ‘the Golden rule’.

Burns v Burns

The testatrix, Eva Burns, had two sons, Anthony and Colin. She and her husband had sold half of the beneficial interest in their home to Colin for £10,000 in 1982. In 2003, her husband having died, she executed a will leaving the half share she still owned to her other son Anthony, who still lived with her and held a power of attorney for her. The rest of her estate was to be divided equally between the two sons.

Two years later, however, she executed a new professionally drafted will that left her whole estate to be divided equally between her sons. Thus, under this will, Colin would end up with a 75 per cent share of the house’s value, and Anthony with only 25 per cent.

When Eva Burns died in 2010, Anthony challenged the 2005 will for lack of testamentary capacity and also lack of knowledge and approval of its contents.

He was able to produce evidence showing that, when his mother executed the 2003 will, she was already suffering mental impairment including forgetfulness and confusion. The local authority’s social services department had referred her to a community nurse who carried out a ‘Mini Mental State Examination’ on her, which found that she was unable to state, the year, the date, the season, the day or the month, could not write a sentence, and could not recall three common objects mentioned to her by the nurse a few minutes earlier.

In addition, the manager of a day care centre that Eva Burns attended the following year (2004) gave evidence that by then she was suffering moderate to severe dementia, did not know the manager’s name, and believed her husband was still alive. A consultant geriatrician opined that Eva Burns’ test results showed she had been ‘poorly orientated as to where she was in time and place’, with ‘poor short term memory and problems with analysis and simple task planning’.

On this basis Anthony Burns alleged that the 2005 will was invalid.

The Outcome

To the surprise of many, the judge refused Anthony’s claim and held that the 2005 Will was valid.

The matter was then appealed.

The Court of Appeal did not overturn the judge’s decision.They held that the Judge at first instance ( a District Judge)  did adequately identify the salient criteria for determination of testamentary capacity, distilled from Banks v Goodfellow  and Cowderoy  v Cranfield [2011], ie that the testatrix must:

a) understand that she is giving her property to one of more objects of her regard;

b) understand and recollect the extent of her property;

c) understand the nature and extent of the claims upon her from individuals both included in, and excluded from, the will;

d) guard against any ‘insane delusion’ from influencing her will.

The court of appeal also stated that the ‘golden rule’, it is neither a rule of law nor ‘a touchstone of validity or a substitute for established tests of capacity or knowledge and approval’

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.


Shak Inayat
0207 183 2898


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