With the disastrous effects of COVID-19 laid bare across the globe, there has been a recent surge in the number of people looking to make or update their Wills. In light of this rather morbid thought, an interesting judgment has brought the issue of testamentary capacity and the 'Golden Rule' into focus; Re Baron Templeman of White Lackington (Deceased).
Interestingly, the testator of the Will at the centre of these proceedings was none other than Lord Templeman; the former High Court Judge who developed the Golden Rule.
The Golden Rule
Lord Templeman first coined the Golden Rule in the landmark case of Kenward v Adams [1975], where he stated:
'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…: the making of a Will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself with the capacity and understanding of the testator, and records and preserves his explanation and finding'.
Whilst the Golden Rule is a 'rule of solicitors' good practice' [1] rather than of law, it is accepted that it should where possible be observed by solicitors as it has the benefit of making it more difficult for the Will to be challenged in due course on grounds of lack of testamentary capacity.
Lord Templeman’s 2008 Will
Somewhat surprisingly, when Lord Templeman made his final Will in 2008 at the age of 88 it was drafted by a solicitor but was not witnessed by a medical practitioner.
This 2008 Will made a number of changes to the provisions of a previous Will and codicil; most notably, altering the gift of the house ('Mellowstone') he had inherited from his late second wife, Sheila. Instead of the value of Mellowstone being shared amongst his grandchildren and the residuary beneficiaries of Sheila’s estate (as provided for by Lord Templeman’s previous Will), the 2008 Will provided that Mellowstone was to pass to Sheila’s two step-children (the 'Claimants').
The Challenge
Upon Lord Templeman’s death in 2014, his son and daughter-in-law (the 'Defendants') refused to administer his estate in accordance with the terms of his 2008 Will and asserted the Will to be invalid on the basis that that Lord Templeman had lacked testamentary capacity to make it.
The Defendants’ principal basis for their assertion was that Lord Templeman must have forgotten his previous Will and codicil when making his 2008 Will because there was no rational explanation for the differences between his final Will and his previous testamentary dispositions.
However, they also argued that as Lord Templeman, of all people, had (apparently) failed to raise the question of medical assessment when instructing his solicitor to make his 2008 Will and therefore seemingly forgotten his own Golden Rule, this was evidence in itself that he lacked testamentary capacity at that time.
The Judgment
Mr Justice Fancourt held in favour of the Claimants, upholding the 2008 Will and finding that Lord Templeman did have testamentary capacity when making it.
In making this judgment, Fancourt J relied upon numerous witness accounts as to Lord Templeman’s mental capacity in 2008 and the years that followed. This included evidence that:
- Although he struggled to remember more trivial events, Lord Templeman often remembered the more important ones, and his ability to remember more distant events (such as the making of his earlier Will and codicil) was very good
- In 2011, three years after making his final Will, Lord Templeman managed to beat his otherwise 'unbeatable' sister Olive at Scrabble, a feat, Fancourt J considered to be a clear indication that his cognitive skills (other than his 'episodic' memory) were not impaired to any significant degree.
Fancourt J also attributed Lord Templeman’s failure to ensure his solicitor followed the Golden Rule as evidence of '…the commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves…' [2] (a point aptly demonstrated by ex-SAGE advisor Neil Ferguson).
Conclusion
As this case shows, testamentary capacity, like many other legal concepts, is proved by evidence. In Lord Templeman’s case, there was evidence available to demonstrate his capacity but the outcome of this case could have been very different if that evidence had not been available. The beauty of the Golden Rule is that, absent strong evidence to the contrary, it should put testamentary capacity beyond doubt.
In practice, however, following the Golden Rule can be problematic - medical practitioners are often unwilling to get involved and lack knowledge of the common law test for establishing testamentary capacity. Given also the potential for delays and cost consequences, absent any obvious signs hinting at capacity issues or radical changes to an existing Will, solicitors may often not suggest a capacity assessment based simply on the testator’s age.
In this case, the major changes made to Lord Templeman’s previous Will should have been a warning light to Lord Templeman’s solicitor to make extra enquiries or to suggest a capacity assessment. Despite having access to the previous Will and codicil (copies of which were kept at the solicitor’s firm) no mention was made of them in the solicitor’s attendance note. Whilst one might have some sympathy for the solicitor being a bit circumspect about suggesting a capacity assessment to a legal giant (especially where his Scrabble skills are so obviously undiminished!), at the very least, a more thorough account of Lord Templeman’s reasons for altering his Will should have been recorded.
If you have any questions about this article, please contact Kevin Kennedy.
[1] Sharp v Adam [2006] EWCA Civ 449
[2] At paragraph 116