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Silence is Golden: Review of Burns v Burns [2016] EWCA Civ 37

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Posted by Katie Alsop on 18 July 2016

Katie Alsop - Will Disputes Lawyer
Katie Alsop Partner

Silence is golden or so they say. This isn’t true however, if you are tasked with taking instructions for the preparation of will. A recent judgment from the Court of Appeal outlines the correct application of ‘the Golden rule’ in cases where testamentary capacity is challenged.

The Golden Rule

Originally outlined by Templeman J in the 1970s, ‘the Golden rule’ with contesting a will relates to the caution a Solicitor or other professional must take when drafting a Will for an elderly or sick client; as where there are doubts about such a client’s testamentary capacity, or the ability to make their own decisions with regard to their Will, a Solicitor should seek an opinion of a medical professional in order to ensure the client has sufficient capacity. In the recent case of Burns v Burns [2016] EWCA Civ 37, the Court of Appeal helpfully looked at the law, or guidance, surrounding the correct application of ‘the Golden rule’.

Facts of Burns v Burns

This case concerned two separate Wills written by an elderly lady, Mrs Eva Burns, which were challenged at the first instance Court by her two sons. The first Will had been drafted in 2003, and the second had been drafted in 2005 (“the 2005 Will”). At the first instance Court, the 2005 Will was challenged by one of her sons, Anthony, who argued that it had been drafted at a time when Mrs Burns had lost her testamentary capacity due to her mental functions breaking down. This argument was rejected by the first instance Court, as the District Judge found that the 2005 Will was valid. Consequently, Anthony appealed against this decision.

Grounds for Appeal

On appeal, Anthony argued that the District Judge had not taken into account the correct factors and evidence when reaching his decision, and consequently should not have decided Mrs Burns had testamentary capacity to make the 2005 Will.

One of the factors the District Judge did not take into account was the fact the burden of proof for the validity of the 2005 Will shifted from Anthony to the Solicitor responsible for drafting the 2005 Will; or, in other words, it was up to the Solicitor to prove the Will was valid, and it was not for Anthony to prove it was invalid. Moreover, it was also argued that the District Judge did not properly take into account the medical evidence, as well as the evidence showing the Solicitor had made mistakes while drafting the 2005 Will, and/or had not followed ‘the Golden rule’.

Court of Appeal judgment

The Court of Appeal rejected the first argument based on the fact the District Judge did not require the Solicitor to prove the 2005 Will was valid. Affirming the High Court judgment in Cowderoy v Cranfield [2011] WTLR 1699, the Court of Appeal agreed that the two-stage test which shifted the burden of proof from the challenger of its validity to the Solicitor, or other person who drafted it, was not helpful, and it was instead better to:

“…proceed directly to answer the ultimate question, which is whether the testator knew and approved the contents of the will, that is, whether the testator understood what he was doing and its effects…”

As, on the facts, Mrs Burns was able to understand what she was doing at the time the Solicitor drafted the 2005 Will, the District Judge had not erred in law. Moreover, the Court of Appeal also rejected arguments relating to the lack of weight given by the District Judge to the medical evidence and the evidence of the Solicitor’s failings. With regard to the medical evidence, the Court of Appeal stated the following:

“While throughout consideration of this appeal I have entertained doubts as to the judge’s conclusions in these respects, I consider that the evidence did entitle him to make the findings that he did.”

With regard to the Solicitor’s failure to follow ‘the Golden rule’, the Court of Appeal stated the following:

“The [District Judge] was also well aware of “the golden rule” and Mr Walton’s apparent ignorance of it… the rule does not constitute a rule of law but provides guidance as to a means of avoiding disputes…”

As such, the Court of Appeal did not find that the Solicitor should have consulted a medical professional, as ‘the Golden rule’ is only guidance. Moreover, the Court of Appeal was also convinced the Solicitor did believe that Mrs Burns understood and approved the Will. 

What does this judgment mean?

This judgment does not set any new precedents. It does, however, reiterate the importance of ensuring an elderly testator does have capacity when drafting a Will; especially where there are family feuds present and a Will is likely to be challenged. Moreover, where a Will is contested on the grounds of testamentary capacity and/or for want of knowledge and approval, or, in other words, where a testator doesn’t know and approve the content of the Will, the Court’s focus will be on the testator’s understanding.

As such, it is important that Solicitors, or other professionals, drafting Wills for elderly or sick clients take as many steps as possible to ensure the testator has the capacity and also knows and approves of the Will. Further, for persons seeking to challenge the Will, they should be mindful that they will need to provide very persuasive evidence to show that the testator lacked testamentary capacity or knowledge of the content of the Will at the time it was drafted; and a sound argument can be made that after this judgment the evidence needed to show incapacity must be very strong indeed. It is always prudent therefore, when considering bring such a claim that all evidence is gathered at an early stage so the merits of a case can be property assessed.

About the author

Katie specialises in contested wills, disputed estates and the removal and substitution of executors.

Katie Alsop

Katie specialises in contested wills, disputed estates and the removal and substitution of executors.

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