If you’re making (or updating) a will at a time when someone might later question your mental capacity, you’re right to think about protection up front. A will challenge can be expensive, stressful, and slow — and it often happens when families are already dealing with grief.
That’s where the “golden rule” comes in. It is not a magic shield, and it is not a rule that automatically makes a will “unchallengeable”. But it is one of the most sensible, well-known solicitor safeguards for wills where capacity may be in doubt — and when it’s followed properly, it can make a future dispute much harder to run.
In this guide, you’ll learn what the golden rule means in practice, when solicitors use it, and the step-by-step process that helps you end up with a will that is clear, compliant, and much more resilient.
If you want support putting a will in place with the right safeguards, start with Wills — and if the situation involves Alzheimer’s or another condition that can affect memory and decision-making, you may also find Will To Remember Alzheimer services helpful.
What is the “golden rule” for wills?
The “golden rule” is a long-standing good practice approach used by solicitors when a person making a will (the testator) is:
- elderly,
- seriously ill,
- living with dementia, delirium, or another condition that could affect decision-making,
- or where capacity might fluctuate (good days and bad days).
In simple terms, it means: if there is any real doubt about testamentary capacity, the solicitor should arrange a contemporaneous medical assessment and keep clear evidence on file.
This is not about being difficult or suspicious. It is about protecting your wishes — and reducing the risk that someone later argues you didn’t understand what you were signing, or that you were pressured.
If you’re navigating will-making after an Alzheimer’s diagnosis, you might also want to read Making a will after an Alzheimer’s diagnosis: Capacity, timing, and safeguards for a plain-English overview of the practical issues and safeguards.
Why this matters more now (a practical UK reality)
In the UK, dementia is increasingly common. Estimates suggest the number of people living with dementia was close to 1,000,000 in 2024 (around 982,000), and projections suggest this could rise to 1,400,000 by 2040. That’s a lot of families dealing with capacity questions at the exact moment they’re trying to put affairs in order.
In real life, will disputes often follow a familiar pattern:
- a late-in-life will make a big change,
- one child (or a new partner) benefits more than expected,
- someone feels excluded or “wronged”,
- and capacity (or undue influence) becomes the battleground.
Following the golden rule doesn’t guarantee nobody will challenge a will — but it gives your solicitor the best chance of showing that you understood what you were doing, freely, on the day you signed.
If a dispute does arise later, it may fall into formal legal proceedings — and that’s where a team with litigation experience can help. See Civil litigation for the broader disputes route.
The legal backdrop
Testamentary capacity: the core test
In England and Wales, testamentary capacity is usually assessed using the Banks v Goodfellow test (often considered alongside the Mental Capacity Act principles). In practical terms, you need to understand:
- you’re making a will and what it does,
- broadly what you own,
- who might reasonably expect to benefit (including people you’re excluding),
- and that your decisions aren’t being driven by a disorder of the mind.
Capacity is decision-specific and can fluctuate. That’s why timing and evidence matter so much.
When will a solicitor consider using the golden rule?
A careful solicitor won’t wait for a crisis. You’ll usually see the golden rule approach when there are “red flags” such as:
- a dementia diagnosis (even early-stage),
- a recent hospital admission, delirium, infection, or medication change,
- memory issues that are noticeable in conversation,
- significant hearing/communication difficulties (because misunderstanding can look like incapacity),
- a will that makes a sharp change from previous plans,
- a new relationship or new “key person” who is heavily involved,
- family conflict, or an expected challenge.
Importantly: a diagnosis does not automatically prevent you from making a will. What matters is capacity at the time of instructions and signing. That’s why it’s often wise to act earlier rather than later — and to build your evidence as you go.
If this is your situation, also consider how you appoint trusted decision-makers for finances and care. You may want to look at Joint lasting power of attorney solicitors and (for business owners) Business lasting power of attorney solicitors.
The golden rule, step-by-step: what solicitors actually do
Below is what “doing it properly” usually looks like — the practical solicitor checklist that protects you.
1) A proper risk screen at the start (before drafting)
A good solicitor will begin by understanding:
- your age and health background (only as relevant),
- any diagnoses and when they were made,
- whether capacity fluctuates,
- who is involved day-to-day,
- what has changed (and why you’re changing your will now).
This isn’t being nosey. It’s building the “why now” story and spotting risk early.
2) Speak to you alone (and control the environment)
One of the biggest risks in capacity-related cases is undue influence — pressure, coaching, or control by someone who benefits.
So, a solicitor will usually:
- see you without beneficiaries present,
- avoid taking instructions in front of family members,
- and be cautious where someone else is “speaking for you”.
If you genuinely need support (for mobility, hearing, language, anxiety), that can be managed — but it should be documented carefully so it doesn’t look like someone else was driving the decisions.
3) Take clear “capacity-focused” instructions (not just “what do you want?”)
This is where the golden rule becomes more than a tick-box.
Your solicitor should ask simple questions that test real understanding, such as:
- “Tell me in your own words what a will does.”
- “Who are the people you’d expect to benefit, and why?”
- “What do you own, broadly?”
- “If you’re leaving someone out (or leaving unequal shares), can you explain your reasons?”
The key is your own words. A strong attendance note is often one of the most important pieces of evidence later.
4) Consider (and arrange) a medical opinion when needed
If there is any meaningful doubt, the solicitor should arrange a medical assessment — usually by:
- a GP who knows you,
- or (often better) a consultant with experience of capacity in older age or dementia.
The goal is a short, practical report that addresses testamentary capacity on the day — not a generic letter.
Cost (typical UK reality): these reports are often paid privately and may range from around £250 to £1,500+ depending on urgency, complexity, and who is instructed. Your solicitor should flag likely costs early so you can make an informed choice.
5) Time the assessment as close to execution as possible
Timing is critical. A report done weeks earlier may not help much if capacity fluctuates.
A careful approach often looks like:
- instructions meeting,
- medical assessment arranged promptly,
- will drafted quickly,
- signing arranged soon after (at your best time of day, with breaks if needed).
6) Draft in a way that matches your understanding
If capacity is borderline, complexity is your enemy.
A solicitor may recommend:
- straightforward gifts,
- fewer moving parts,
- avoiding over-engineered trust structures unless genuinely needed,
- and keeping language clear and unambiguous.
This is also where a letter of wishes can help explain reasoning (particularly if someone is being excluded). It won’t replace the will, but it can reduce the “why did Mum do this?” arguments later.
7) Handle execution carefully: witnesses, setting, and records
In England and Wales, a will must be signed in the presence of 2 witnesses who then sign.
To protect you, the solicitor will usually:
- choose independent witnesses (not beneficiaries, not spouses/civil partners of beneficiaries),
- make sure signing formalities are correct,
- confirm you appeared to understand what you were signing,
- and document the execution meeting properly.
Some firms may also use a discreet video record (with consent) — not as a gimmick, but as extra evidence of understanding and voluntariness.
8) Keep a “challenge-ready” file
A will is not just the document. It’s the evidence behind it.
A golden-rule file will often include:
- detailed attendance notes,
- any medical opinion,
- copies of drafts and the reasons changes were made,
- notes confirming who was present (and who was excluded),
- and the execution record.
If you later die and the will is challenged, this file can be the difference between a fast resolution and a long, expensive dispute.
9) Address the human side (without letting it derail the process)
Capacity concerns often create family tension — and sometimes the person making the will wants “peace” more than they want precision.
A solicitor can help you balance that by:
- keeping instructions private,
- explaining how disputes usually arise,
- and helping you set a plan that reduces conflict, without pressuring you to “make everyone happy”.
If executor selection is part of the risk (for example, where family dynamics are difficult), read Choosing executors and trustees when a testator has Alzheimer’s for practical tips.
10) Link the will to the rest of your planning
When capacity might decline, wills should not sit alone.
You may also need:
- LPAs (property/finance and health/welfare),
- a review of property ownership (joint tenants vs tenants in common),
- and a plan for managing bills and care if you can’t do it later.
This is where coordinated advice matters. If you’re building a wider plan for your family, Family will solicitors can be a sensible starting point.
Common mistakes that increase the risk of a will challenge
If you want to reduce risk, try to avoid these:
- Waiting too long because it feels uncomfortable to discuss.
- Letting a beneficiary arrange everything (appointments, transport, “explaining” what you want).
- Using a DIY will when capacity could be questioned.
- Making major changes without explaining why (especially exclusions).
- Signing in a chaotic environment (hospital ward, lots of people present, interruptions).
- No written evidence of what you understood and why you chose your distribution.
If you want more practical reading around legal issues and planning, browse Resources for articles written in plain English.
FAQs
1) Is the golden rule legally required?
No. It is a well-recognised good practice safeguard. Not following it doesn’t automatically invalidate a will — but if capacity is later challenged, the lack of medical evidence and strong solicitor notes can make the will harder to defend.
2) Does a dementia diagnosis mean you can’t make a will?
Not necessarily. A diagnosis does not automatically remove capacity. The question is whether you had testamentary capacity at the time you gave instructions and signed. That’s why timing and evidence matter so much. For a practical overview, see Making a will after an Alzheimer’s diagnosis: Capacity, timing, and safeguards.
3) Who pays for a capacity assessment?
Usually, it’s paid privately by the person making the will (or their estate planning budget). Costs vary widely, but it’s sensible to plan for a few hundred pounds and potentially more if a specialist is needed or timing is urgent.
4) What if the person refuses to see a doctor?
That happens. A solicitor can still take careful capacity-focused instructions, meet you alone, ask the right questions, and keep detailed attendance notes. But if there are clear red flags, refusing an assessment can increase the risk of challenge — and a solicitor may advise strongly that a medical opinion is the safer route.
5) Can you do the assessment remotely?
Sometimes, but it depends on the circumstances and professional willingness. Where capacity is likely to be disputed, many solicitors prefer an in-person assessment (or at least a very robust process) because the evidence may be scrutinised later.
6) How do you reduce “undue influence” risk?
You reduce it by controlling the environment: you give instructions privately, beneficiaries are kept out of meetings, the solicitor documents who was present, and your reasons are recorded clearly. If needed, a letter of wishes can explain exclusions or unequal shares.
7) Why does executor choice matter when capacity is borderline?
Because disputes are more likely, administration can be harder, and the wrong executor can inflame conflict. Thoughtful appointments (sometimes including a professional) can reduce delays and keep decisions defensible. See Choosing executors and trustees when a testator has Alzheimer’s.
8) What happens if a will is challenged anyway?
It depends on the grounds and evidence. Some cases settle quickly; others become formal disputes. If a dispute escalates, you may need litigation support — see Civil litigation for the wider dispute-resolution route.
Speak to Atalaw Solicitors about a golden-rule will
If you’re worried that someone may later question capacity — or you simply want your will done properly, with the right safeguards — Atalaw Solicitors can guide you clearly and calmly, without unnecessary legal jargon.
Start with Contact Us or call 0203 581 9293. You can also email info@atalawsolicitors.com to arrange an initial discussion.