Civil Fraud Quarterly Round-Up: Q1 2021
The case of Goss-Custard v Templeman & Ors involved a dispute as to whether Lord Templeman, a former judge, had testamentary capacity when his last will was executed in 2008, six years before his death.
Lord Templeman had started to experience difficulty with his short-term memory in 2006 and his condition gradually deteriorated over the remaining eight years of his life. Expert evidence now attributes this to early symptoms of dementia attributable to Alzheimer's disease, though Lord Templeman was never diagnosed with or treated for this disease during his lifetime.
If Lord Templeman did not have testamentary capacity when he executed the 2008 will, the effect would be that his final will was one that he made in 2001, subject to a codicil made in 2004. The main difference between the 2001 and 2008 wills related to the home which Lord Templeman had shared with his second wife Sheila Edworthy from 1996 until his death in 2014, known as Mellowstone, in Exeter.
Under the 2001 will, Lord Templeman left £20,000 free of tax to each of his six grandchildren and £120,000 from Mellowstone free of tax to Sheila's residuary beneficiaries, with the remainder to be shared by his two sons from his first marriage, Peter and Michael. Under the 2008 will, Lord Templeman left Mellowstone to Sheila’s step-daughters Jane Goss-Custard and Sarah Edworthy. He left no legacies to his grandchildren and, apart from some modest gifts, the residue of his estate was left to Peter and Michael in equal shares.
Michael and his wife Lesley argued that Lord Templeman did not have testamentary capacity when he made his 2008 will, which was disputed by Jane and Sarah. A question was raised as to whether Lord Templeman remembered the terms of his 2001 will when he made his 2008 will, and if not, was he acting in the mistaken belief that he had not already provided for what was to happen to Mellowstone.
The law relating to testamentary capacity is as set out in the case of Banks v Goodfellow. The requirements are that a testator:
Lord Templeman's will was prepared by a solicitor, Mr Merrick. Mr Merrick recorded in his notes of the second meeting that "[Lord Templeman's] thinking and logic about the Estate seemed faultless.” It can be difficult to challenge a will based on lack of testamentary capacity in circumstances where it was prepared by an experienced solicitor. In the case of Hawes v Burgess it was found that it would be a "very strong thing" to conclude that a testator lacked testamentary capacity in such circumstances.
Ironically the Golden Rule was not followed by Mr Merrick, despite the fact that it was set out by Lord Templeman himself when hearing the cases of Kenward v Adams in 1975 and Re Simpson in 1977. Lord Templeman’s failure to request that he be medically examined when making the 2008 will was one of the grounds relied upon by the defendants in support of the position that Lord Templeman lacked testamentary capacity.
The Golden Rule for solicitors preparing a will for an older or seriously ill testator is that they should arrange for it to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings. Any earlier will should be discussed with the testator; and instructions should be taken in the absence of anyone who stands to benefit or exerts influence. However, in the case of Key v Key  it was found that even where the Golden Rule is followed, this does not automatically mean that a will is valid, nor does the non-compliance with the rule mean that a will is not valid. The question of validity will depend on the facts of the individual case.
The court found there was no clear evidence to suggest that Lord Templeman's mental functioning was impaired in 2008 to any significant degree except in respect of the difficulty he was experiencing with his episodic memory. There was no expert evidence of lack of capacity presented at the hearing in this case. The only expert witness, Professor Howard, was called by the claimants and testified that there was a relatively high degree of probability that Lord Templeman had testamentary capacity in 2008.
The court did not agree that in August 2008 Lord Templeman had forgotten his 2004 codicil and was suffering from an incorrect belief that a wrong had been done to Jane and Sarah. On a balance of probabilities, the court found that Lord Templeman wanted to ensure that Mellowstone could remain in Sheila's family after his death, and not be sold and shared out, as was the effect of his will and 2004 codicil. His reason for doing so was the love and affection that he felt in August 2008 for Jane and Sarah.
As to Lord Templeman’s failure to insist that his own Golden Rule be followed, the judge took the view that people who are able to give good advice to others do not always follow such advice themselves, or believe themselves to be in need of it. The judge commented that it may not necessarily be easy for an elderly but knowledgeable testator to admit openly to being of doubtful testamentary capacity and that it cannot be inferred that Lord Templeman did not raise it because he had no functioning memory and so no testamentary capacity. However, it is easy to see how the judge could have come to the opposite conclusion on the same facts.
It was concluded that Lord Templeman was able to comprehend and appreciate those who had a call on his estate and was not suffering from a delusion that poisoned his mind, and so he had testamentary capacity in August 2008 when he made the will. The argument that a will cannot be valid unless the testator is aware of the terms of his existing or previous wills, or has to mind the reasons underlying the gifts in them was rejected. It was found that a testator does not have to be able to justify to himself a difference between a previous will and the new will, even if there were particular reasons for the terms of the previous will.
The question of testamentary capacity arises frequently, which is not surprising given the prevalence of conditions such as Dementia. Even if someone has formally been diagnosed with such a condition, they may still be found to have testamentary capacity. Where a will has been prepared by a solicitor, challenges on the basis of testamentary capacity are more difficult, but not impossible. It is important that all of the circumstances are properly considered in the period leading up to when the will was made, before deciding whether to proceed with a challenge on this basis.
Further information regarding contesting a Will is available on our Wills, Trusts and Inheritance Disputes page. A recent vlog series which explains the grounds on which the validity of a Will can be challenged is available here.
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