Goss-Custard v Templeman  EWHC 636 (Ch)
Mr Justice Fancourt has just handed down judgment in the High Court after the seven day trial concluded on 28 January 2020.
The Last Will and Testament executed by Lord Templeman on 22 August 2008 has been upheld, despite Lord Templeman suffering from mild dementia and short-term memory loss.
Lord Templeman was well known throughout the judiciary for his founding of the ‘Golden Rule’ in the case of Kenward v Adams  which he defined as:
“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 that 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”.
In relation to his own will, the Golden Rule was not followed.
The dispute centered around the property known as Mellowstone, which Lord Templeman lived in at the time of his death. The effect of the 2008 will was that Mellowstone passed to Lord Templeman’s stepchildren, Jane and Sarah. Lord Templeman’s son, Michael, and daughter-in-law, Lesley, contend that the 2008 will is invalid on the basis that Lord Templeman lacked the necessary testamentary capacity to execute the will when he did in August 2008.
If successful with a claim, Lord Templeman’s interest in Mellowstone was to pass to his two sons, Michael and Peter. Michael and Peter contend that there was no rational explanation for the change that Lord Templeman made to his will in 2008 as regards Mellowstone.
Lord Templeman started to experience difficulty with his short term memory in 2006, which deteriorated gradually over the last eight years of his life. Expert evidence attributed this to early symptoms of dementia and Alzheimer’s disease, but Lord Templeman was never treated for this disease during his lifetime.
In this case, there was no expert evidence of lack of capacity. The only expert witness testified that there was a relatively high degree of probability that Lord Templeman has testamentary capacity in 2008.
Mr Justice Fancourt held that “there is no cogent evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree”and “all evidence suggests that Lord Templeman was at all times a strong and decisive person”. The will was upheld.
“Given Lord Templeman’s reputations, his evident intellectual resources and the perfectly rational terms of the new will, I do not find it surprising that the solicitor decided not to enquire further or suggest that Lord Templeman be medically assessed."
This type of litigation demonstrates that, regardless of a persons’ position insociety, if a solicitor has concerns regarding the capacity of a testator, necessary steps should be taken by the solicitor to satisfy themselves that the testator did have capacity.
By my colleague James Wright, Solicitor in our Sheffield Will Trust and Estate Disputes Team