Secure Your Wishes: The Golden Rule for a Valid Will
We all know that having a Will is vitally important, but of equal importance is making sure that you do not have any challenges against your Will after you pass. You may need to change things, or you may not, but making sure that you have capacity whilst making a Will should aim to ensure that your wishes are followed.
In 2023 the Ministry of Justice Family Court stated that:
“In 2023 there were 122 contested probate cases, up from 116 cases in 2022.”
What is the ‘Golden Rule’?
The Golden Rule is a legal guideline designed to uphold the validity of a Will, especially when the testator is elderly or facing mental health challenges. It suggests that if there is any uncertainty regarding the testator’s mental capacity, a qualified medical professional should evaluate and confirm their ability to make a Will.
What is testamentary capacity?
Testamentary capacity refers to a person’s mental ability to make a valid Will. In England and Wales, for someone to be deemed to have testamentary capacity, they must meet the following criteria:
- Understanding the nature of making a Will – The testator must recognise that they are creating a legal document outlining how their estate should be distributed after their death.
- Understanding the extent of their estate – The testator should have a general awareness of the assets they own, including property, savings, and investments.
- Considering their beneficiaries – They must be able to reflect on who will inherit from their Will and whether they have obligations to certain individuals, such as family members.
- Being free from delusions that could influence the distribution of their estate – The testator must not be suffering from delusions, such as those caused by a mental disorder, which could affect how their estate is allocated.
A carelessly drafted Will might mean your Estate is subject to challenges once you die. This means your wishes within your Will might be contested, therefore it is important for a practitioner to ensure that you have testamentary capacity.
What’s more a carelessly drafted Will may ruin relations between your loved ones that could otherwise have been avoided. You should take expert advice at the earliest possible opportunity to ensure professional Estate planning is put in place from the onset.
The moral of the story
Be wary of non-qualified Will writers, and do not be tempted by a ‘cheap’ Will. It is important to have your Will drafted by an expert who can create a bespoke Will tailored to your needs and interests.
Whilst it may seem daunting, it need not be, provided professional advice is taken at the earliest possible opportunity and making sure your Will and estate planning is professionally reviewed.
How can Ellis Jones help?
If you are unsure or need professional advice with your Will, please visit our Wills, Trusts and Probate webpage. You can contact the team on 01202 525 333 or by emailing Richard.smith@ellisjones.co.uk. Alternatively, you can also contact our Wills, Trusts and Probate team by emailing willenquiries@ellisjones.co.uk.
About the authors
Richard Smith is a Partner and Solicitor in our Wills, Trusts & Probate team and is based in our Bournemouth office.
Alexander Chance
Alexander is a Legal Assistant in our Wills, Trusts & Probate department alongside Richard and is based in our Bournemouth office.
How can we help?
When you submit this form an email will be sent to the relevant department who will contact you within 48 hours. If you require urgent advice please call 01202 525333.
