Court considers the will of the judge who created the ‘Golden Rule’

GOSS-CUSTARD & ANOR V TEMPLEMAN & ORS [2020] EWHC 632 (CH)

Following a seven-day trial, judgment was handed down on 28 January 2020 upholding the Last Will and Testament of Lord Templeman. Lord Templeman was a distinguished Law Lord, well known for his significant contributions to English law, often expressed in bold terms. One such contribution was to estate law, where his lordship established the ‘Golden Rule’ in relation to mental capacity in the case of Kenward v Adams [1975] CLY 359:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest the precautions be taken; the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”.

Following case law that considered Kenward established that this rule is not a legal requirement or indeed determinative, nor does it reverse the onus of evidentiary proof (see, e.g., Hoff v Atherton [2004] EWCA Civ 1554; Scammell v Farmer [2008] EWHC 1100 (Ch)). The rule has, however, been considered by probate lawyers as good practice and a relevant consideration in contested capacity claims.

At the time of making his own will in 2008, Lord Templeman was 88 years old and suffering from mild dementia and short-term memory loss. Despite this, no medical practitioner assessed Lord Templeman’s capacity. Lord Templeman’s son and daughter-in-law (as Defendants in this action) sought to challenge the validity of the will for lack of testamentary capacity.

Background

Lord Templeman had two sons, Peter and Michael, with his first wife, Margaret. Following Margaret’s death in 1988, Lord Templeman married Sheila in 1996.

Sheila had one son, Bruce, from her first marriage to Tony Hughes. In 1974 Sheila married her second husband, John Edworthy, father of Jane Goss-Custard and Sarah Edworthy (the Claimants propounding the will). Sheila and John built Mellowstone, their house in Exeter, and John died in 1995. Upon their marriage, Lord Templeman moved to Exeter to live in Mellowstone with Sheila and lived there until his death in 2014.

Under Lord Templeman’s 2001 will and 2004 codicil, if he inherited Mellowstone he left £120,000 to his grandchildren and £120,000 to Sheila’s residuary beneficiaries (including Jane and Sarah). Any greater value of Mellowstone would fall into his residuary estate, which was to be shared by Peter and Michael. Sheila’s 2004 will had the same terms and was intended to work in parallel with Lord Templeman’s codicil.

Sheila died on 11 June 2008 and on 22 August 2008 Lord Templeman executed a new will. Under the 2008 will, he left Mellowstone subject to inheritance tax to Jane and Sarah. Lesley Templeman, Michael Templeman’s wife, was appointed as the executor of Lord Templeman’s estate.

The Claimants contended that there was no rational explanation for the change that Lord Templeman made in his 2008 will. They stated that an inference should be made that Lord Templeman had forgotten the arrangements made in 2004 and was acting under an illusory belief that he had not provided in his will for the eventuality that he inherited Mellowstone. They argued that this illusory belief meant that Lord Templeman did not sufficiently appreciate the relative nature and extent of the calls upon his bounty from his own family and from Sheila’s family, and so he lacked testamentary capacity.

Judgment

Mr Justice Fancourt found that, “there is no cogent evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree”. He further concluded that Lord Templeman was aware of his 2001 will and 2004 codicil for two main reasons. First, the will and codicil were made at a pre-morbid stage and so it is likely that he would have remembered them. Second, the documents were easily found in his study and he would have considered them before seeing his solicitor to discuss and execute the 2008 will.

Fancourt J also rejected the Claimants case that there was no occasion for anything to be changed because nothing had changed between 2004 and 2008, and therefore the 2008 will was irrational. It was found that this analysis overlooked the emotional journey of Lord Templeman, Sheila, Jane and Sarah as it was clear that Lord Templeman had become very attached to the Claimants in the years preceding his death. Moreover, all the evidence suggested that Lord Templeman was at all times a strong and decisive person and when he made his new will he was not unduly hampered by his difficulty with short-term memory loss.

On the subject of the golden rule, Mr Templeman argued that if his father had a functioning memory then he, of all people, would have heeded his own golden rule. While observing that medical assessment should have occurred in order to avoid such dispute, Fancourt J held that his lordship’s failure to do so was instead evidence “of the commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves”.

Fancourt J ultimately held that, “given Lord Templeman’s reputation, his evident intellectual resources even at that age and the perfectly rational terms of the new will on the face of it, I do not find it that surprising (the Golden Rule notwithstanding) that Mr Merrick decided not to enquire further or suggest that Lord Templeman be medically assessed”.

The judge also rejected the argument that Lord Templeman had misjudged the claim of Sarah and Jane, whose needs had already been provided by Sheila, clarifying that, “the test of testamentary capacity does not depend on a testator’s ability to judge to a nicety the relative merits of the rival claimants, or judge correctly to what extent their needs have already been met from some other source. It depends on having capacity to appreciate those persons who have a claim and to decide fairly between competing beneficiaries, making provision for some and not for others”.

Fancourt J went further to find that even if he had concluded that Lord Templeman had forgotten the terms of his 2004 codicil, he would still have held that Lord Templeman had testamentary capacity. His reasoning being, “a testator does not have to have all the facts with which to make a correct or justifiable decision”. It was not necessary for Lord Templeman to remember the relevant facts about each of the potential objects or to have correctly understood their financial circumstances. His testamentary capacity relied on his capability to weigh the competing claims.

Lastly, the Claimants sought to persuade Fancourt J that Lord Templeman was subject to a delusion, or illusory belief, which undermined his ability justly to decide.  The judge dismissed this argument, holding that even if Lord Templeman had forgotten the 2004 codicil or the reasons for its terms, that was a simple mistake, which was attributable to his poor memory and fell “far short of the kind of “delusion” needed to negative testamentary capacity”.

Fancourt J concluded that Lord Templeman was therefore able to comprehend and appreciate the claims to which he ought to give effect, and was not suffering from a delusion that poisoned his mind. Accordingly, he was held to have had testamentary capacity and the 2008 will was admitted to probate. 

Comment

The complexities in this case are of course not unique – particularly the interplay between children and step children. The 2008 will had a significant financial impact on his natural children, who then sought to have that will declared invalid. Their argument was based on lack of testamentary capacity, although they put forward no expert evidence of this. The Claimants did have an expert and he concluded that there was a relatively high degree of probability that Lord Templeman had testamentary capacity in 2008. The case demonstrates the real difficulty in succeeding with these kinds of claims without the benefit of expert evidence. The case also demonstrates that an impaired short term memory does not mean that someone does not have testamentary capacity.

Finally, the judge found that the fact that the solicitor preparing the 2008 will had not followed the Golden Rule was not surprising, “though of course as this litigation demonstrates he should have done”. That said, the Golden Rule provides that the making of the will “ought to be witnessed or approved by a medical practitioner”. A testator cannot be forced to agree to this and even if s/he does, there is no guarantee that it will prevent litigation.