Ginger & Ors v Mickleburgh & Ors (2026) EWHC 100 (Ch): the Golden Rule is still golden
Background
The Claimants in this case were the deceased testator’s (Michael Gwilliam – ‘Michael’) four surviving daughters. The Defendants were Michael’s sister (‘Sheila’), his nephew (‘Robert’) and his ex-partner (‘Joan’). Michael executed a will on 3 December 2014 (‘the Will’) in which he appointed Sheila and Robert as executors with a default provision for a partner at the will drafting firm (Gwyn James) to act. He left a legacy of £31,000 to Joan with a provision applying in the event of default. The residue was left to Joan (25%), Sheila (25%), 25% to Sheila’s three sons (including 15% to Robert), and 25% was to be provided to Michael’s four daughters.
The Claimants brought a challenge to the validity of the Will on the grounds of lack of testamentary capacity or fraudulent calumny. The parties had, in the judge’s view, an “appalling” relationship by the time the claim had been brought, having broken down, seemingly, irretrievably several years before.
It is widely acknowledged that a solicitor’s evidence plays a crucial role not only in the understanding of the testator’s instructions in the will-making process but also in that individual’s presentation at that time. That opinion, if from an experienced practitioner in the field, will be given significant weight by the court in the assessment of testamentary capacity. It follows that often in a probate dispute the solicitor or professional practitioner’s evidence is central but not to the point of being exclusionary to other available evidence. All available evidence will be considered holistically by a judge.
In the present case, Ms Costley, an experienced paralegal from the will drafting firm, gives evidence that the only notes she retained on her file were a will questionnaire which she completed once instructions had been taken from Michael, along with a will capacity checklist. She did not produce a formal, written attendance note. The lack of contemporaneous record is acknowledged by Ms Costley, who indicates, seemingly in examination, that her practice has evolved, so that she now produces written attendance notes. It is at this point in reading the decision that you feel a more comprehensive file containing a sufficient level of detail and record keeping would have no doubt assisted Ms Costley’s recollection of events. Her ability to give accurate evidence therefore was significantly limited.
Both non-contentious and contentious practitioners alike will be reminded of the importance of keeping a detailed and comprehensive will file. Whether dealing with a more vulnerable, high-risk client or not, the basic standard should be met in all cases so that any arising dispute in this context is met head on. Here, there is a clear causative link between the scantness of the will file, Ms Costley’s ability to recall the event and the resulting limited weight attached to her evidence of Michael’s capacity. That is not to say that other variables will not affect the quality of a solicitor’s evidence, however, such as performance in cross-examination at trial, but a comprehensive and well-founded will file is a crucial starting point.
What is the Golden Rule?
The shortcomings in the practitioner’s interrogation of the medical evidence once again highlight the importance of adhering to the Golden Rule. An industry-wide standard practice, not a rule of law, the Golden Rule guides that an appropriate medical practitioner should provide an independent assessment of a testator’s mental capacity where they are afflicted with known medical conditions or are elderly and/or vulnerable. Ms Costley acknowledges Michael’s medical presentation as of 4 November 2014, by which point he was diagnosed with “persistent delusional disorder” and “mild Cognitive Impairment due to diffuse cerebrovascular impairment”. Yet, she does not engage with Mr Jolley, Michael’s mental health nurse (who was present on the day) or ask for his assessment of Michael’s capacity.
That appears to have been another fatal error; the judge viewed Mr Jolley’s evidence as particularly valuable. He was a witness with significant expertise in mental health and someone who knew the testator very well. The judge’s finding that Mr Jolley’s knowledge and expertise were not utilised at the time instructions were given, considering Michael’s medical history and accordingly little weight was attached to Ms Costley’s evidence, underlines how important the Golden Rule continues to be in practice today. Paragraph 130 indicates that Mr Jolley would have found Michael’s capacity to make a will to be impacted had he been asked to make such an assessment. If this was taken into account by the will drafter, perhaps the course of events would have been entirely different.
This section of the decision is a timely reminder for will drafters to obtain independent medical evidence even when there is only a small level of concern or risk which may call into question a testator client’s capacity on account of their medical history, age and/or associated vulnerabilities. It also serves as a clear example that despite a will being professionally drafted, a court is willing to look behind the will drafting process and find against a practitioner’s view on capacity upon scrutiny of the process followed.
This decision can be compared with the decision in Hughes v Pritchard (2022) EWCA Civ 386. It is not simply enough for a solicitor to obtain a medical expert’s view of capacity in adherence to the Golden Rule. The contemporaneous assessment on both fronts must be sufficiently detailed and materially tied to the testator’s specific circumstances.
Fraudulent calumny
As to fraudulent calumny, that part of the claim failed. That claim is a technical one with a high evidential burden. The law is clearly set out in Kunicki v Hayward (2016) EWHC 3199 (Ch) and Christodoulides v Marcou (2017) EWHC 2632 (Ch). The Defendants, Joan and Sheila, against whom this allegation was principally levelled, were found themselves to have believed the statements which supposedly induced Michael to alter his testamentary disposition.
Of note here is that the judge found the statements were intended to induce Michael to make a will which significantly reduced his daughters’ interest in his estate. However, the statements were not fraudulent themselves, as both Defendants were found to genuinely believe that they were true. Practically, in this regard, it is a difficult task to argue and evidence belief in what another party is saying they knew to be untrue and/or that belief could or could not have, at any point, wavered or ceased. A claimant faces an uphill struggle when proving the fraudulent element of the claim, requiring compelling evidence and proof of the required intention or recklessness to the civil standard. Subjectivity in this regard compounds the evidential task when pursuing this serious allegation.
Key takeaways
The decision highlights some well-known technical areas arising within the contentious probate sphere. What is clear from this decision is the importance of ensuring the basic standards of practice are met in the will preparation process. Moreover, it reminds us that probate disputes are personal by nature. The evidence here comprised not only the usual expert and medical evidence along with that of the will drafter but personal diaries, social media posts and email communications to name a few. As practitioners, we are well versed with the evidential requirements of a probate claim, but as a lay person, it is no doubt a daunting prospect to disclose such extensive personal evidence, some of which, in hindsight, may make for uncomfortable re-reading. Certainly, this is a key consideration before embarking on probate proceedings, and prospective litigants should be aware that sensitive details of their family and personal lives may be laid bare for the court (and public) to see.
It is also a valuable decision in context, emphasising the appropriate steps practitioners ought to be taking with ill, vulnerable and elderly clients. Furthermore, it again highlights that claims alleging fraud must be approached with some caution, and this decision cements the associated high evidential hurdles; prospective claimants must be advised of these early doors and well in advance of taking the first step in litigation.