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Legal case

Failure to follow the Golden Rule: Senior judge’s Will is challenged for lack of mental capacity

The Will of a former senior judge has been challenged on the basis that he did not have mental capacity.

Goss-Custard v Templeman [2020]

The will of a former senior judge has been challenged on the basis that he did not have mental capacity.

Lord Templeman died in 2014. During his career as a senior judge, in the case of Kenward v Adams [1975], Lord Templeman established the ‘Golden Rule’ that should be followed by solicitors when making a will for an elderly or seriously ill client whose mental capacity is in doubt. In such cases, the will ought to be witnessed or approved by a medical practitioner who is satisfied that the client has the required mental capacity to make a will. Lord Templeman suggested that his ‘Golden Rule’ should always be followed, no matter how difficult or tactless it may be in the circumstances.  

Whilst Lord Templeman’s ‘Golden Rule’ is not strictly a legal requirement, it is considered to be good practice by legal practitioners.

However, when Lord Templeman made his own will in 2008, he was living with dementia and experienced short-term memory loss. There was no consultation with a medical practitioner about the will at the time it was made. Ironically, Lord Templeman (and the solicitor preparing his will) failed to follow his own ‘Golden Rule’.

Lord Templeman had two sons from his first marriage. He subsequently married his second wife, Sheila who had children from her previous marriages. Sheila died in 2008 and left their home, Mellowstone to Lord Templeman.

Under his will made in 2001 (with a 2004 codicil), Lord Templeman made provision so that if he inherited Mellowstone (ie. if Sheila died before him) he would leave £120,000 between his grandchildren and £120,000 to Sheila’s children. Any surplus value from Mellowstone would form part of his residuary estate and be divided equally between his two sons.

In 2008, 2 months after Shirley’s death, Lord Templeman changed his will to leave Mellowstone to Shirley’s children.

After his death in 2014, Lord Templeman’s sons claimed there was no rational explanation for the change to his will in 2008. Their father must have had forgotten about the arrangements made in 2004 when he changed his will in 2008.

However, the court found there was no evidence to suggest that Lord Templeman’s mental functioning was significantly impaired when he made his will in 2008. His memory loss was not such that he lacked mental capacity to make a new will and he was not suffering with a “disorder of the mind” that had “poisoned his affections” or “perverted his sense of right”. On the balance of probabilities, it could not be proven that Lord Templeman’s mental capacity was diminished to the extent that he failed to meet the legal test for testamentary capacity as set out in the seminal case of Banks v Goodfellow [1870]. Accordingly, Lord Templeman’s 2008 will was upheld by the Court.

Obtaining a medical opinion may be appropriate when making a will for a person whose mental capacity is in doubt or liable to challenge. Had Lord Templeman followed his own ‘Golden Rule’, he could have prevented an acrimonious and costly legal challenge to his will. This case highlights the complexities of mental capacity assessments and reminds practitioners that short-term memory loss does not, in itself, amount to a lack of mental capacity.

Whilst the ‘Golden Rule’ of having a will witnessed by a suitably qualified medical practitioner is desirable in a perfect world, the case shows the courts will accept that real life circumstances can, and do sometimes, prevent perfection. This may provide a degree of comfort to advisers diligently trying to carry out a client’s instructions at a difficult time. In such situations a breach of the ‘Golden Rule’ will not necessarily lead to a ruling that a will is invalid.

If you have any questions or would like to know more please contact Lorraine Wilson, Solicitor on 0161 214 0532 or lorraine.wilson@weightmans.com.

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