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When a will is prepared by a solicitor and properly executed by a testator in front of a solicitor after the contents are read over to the testator, case authorities say that it raises a strong presumption that the will represents the testator’s intention at the moment he executes the will. In a recent judgment in Choy Po Chun & Anor v Au Wing Lun (CACV 177/2017), the Court of Appeal emphasised that solicitors should not regard this task as merely a formal act and must undertake proper groundwork and make proper enquiries. In the case of an elderly or infirm testator, this should include following the Checklist in the “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” published by the British Medical Association and also the “golden rule” that when drawing up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.
In this case, the Court of Appeal ruled that the testator’s capacity was not established even though the will, which was prepared by a solicitor, was executed in front of the solicitor and a trainee solicitor, after being read over twice to the testator before execution. The appeal was therefore allowed and the Court set aside the judgment that a 2008 will be pronounced in solemn form and substituted it with an order that a 2002 will be pronounced in solemn form, for its force and validity.
The testator was 92 years old when he made the 2008 will, living in a care home and showed physical signs of infirmity. The instructions to the solicitor for preparing the will were not given by the testator personally and the solicitor had had no prior contact with the testator before meeting him at the elderly home to execute the will. Before execution of the will, the testator indicated to the solicitor that he did not understand the contents of the will, after it had been read over and explained to him. After it was read over to him a second time, the testator indicated to the solicitor that he understood the contents.
The Court of Appeal held that the evidence (medical history and records and evidence from factual witnesses) raised doubts as to the testator’s testamentary capacity when the 2008 will was executed and it was therefore incumbent upon the propounder of the will to prove capacity. There were, the Court of Appeal said, three relevant questions that should be asked about the deceased’s testamentary capacity to make the 2008 will, in compliance with the criteria laid down in Banks v Goodfellow:
The Court of Appeal held that in finding that there was testamentary capacity, the Judge below had not specifically addressed the three above questions. Although the Court of Appeal had no difficulty in coming to the view that for the reasons given by the Judge below (on the evidence of circumstances of execution of the will, simplicity of the will and rationality of its provisions), the testator was capable of understanding the nature of the act of making the 2008 will and its effects (i.e. the first of the three criteria was satisfied), no inference could properly be drawn from the evidence of the solicitor that the other two criteria had been satisfied as it was accepted that the solicitor had failed to follow the Checklist and “golden rule”.
The Court of Appeal said that while there is no concrete rule of law that solicitors must follow the “golden rule” or Checklist, they are matters of common sense which ought to be observed. In this case, in their interaction with the deceased, the solicitors had plainly not directed their minds to ascertain if the deceased was capable of understanding the extent of the property he was disposing of, or if the deceased was able to comprehend and appreciate the claims to which he ought to give effect in his will. No questions had been asked by them about whether the deceased had any other living close relative apart from the four named beneficiaries in the will, the size of the deceased’s estate or the nature of his assets and whether there was an earlier will and, if so, the reason for making a new will.
The Guidelines given by the Court of Appeal for solicitors preparing and attesting to the execution of will are as follows:
(1) In cases where instructions are given by adult children of a testator who is elderly and not in good health, the solicitor should discharge his duty properly by meeting the testator personally for the purpose of taking or confirming instructions. He should do this well before the day appointed for the execution of the will, which by then, would have already been prepared on the instructions given by someone other than the testator. Enquiries made by solicitors at the appointment should, subject to the circumstances of each case, include the following (which are not exhaustive):
i. the age of the testator,
ii. his health condition,
iii. whether he has a surviving spouse,
iv. the number of children and grandchildren he has,
v. whether there is someone other than his immediate family member dependent on him for support,
vi. the beneficiaries he would like to provide for in his will,
vii. his properties,
viii. whether he has made a previous will,
ix. whether he understands the new will revoke the previous will,
x. whether he understands the difference between the new and the previous will.
(2) In the case of an elderly and infirm testator, the solicitor should also follow the Checklist set out in the “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” published by the British Medical Association.
(3) The solicitor should also ensure that he follows the “golden rule” referred to by Templeman J in Kenward v Adams (1975), namely, when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.
While the Court of Appeal acknowledged that it is not a rule of law that solicitors must follow the Checklist or the “golden rule”, it made it clear that it is prudent for them to do so.
This decision provides clear and useful guidance as to a solicitor’s duties when preparing and attesting to the execution of wills, especially in the case of elderly and infirm testators.
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