Lord Templeman was well known for his bold and significant contributions to English Law. One of his most profound was the ‘golden rule’ established in 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 established this, not as a rule but as good practice and a relevant consideration in circumstances where the testator’s capacity is likely to be contested.
When Lord Templeman made his own Will he was 88 years old and suffering from mild dementia and short-term memory loss. However, there was no medical practitioner present at the time his Will was prepared.
Lord Templeman had two children from his first marriage. Following the death of his wife Margaret, he married Sheila. She had two children from her previous marriages.
Upon his marriage to Sheila, Lord Templeman moved to Exeter and lived with Sheila in her home ‘Mellowstone’, which Sheila had built with her previous husband.
In 2004 Lord Templeman executed a Will and Codicil which reflected the Will of his wife. Sheila died on 11 June 2008. On 22 August 2008 Lord Templeman executed a new Will. This Will left Mellowstone to Sheila’s grandchildren.
The claimants, Lord Templeman’s own children, contested the 2008 Will on grounds that there was no rational explanation for the change to his testamentary wishes and that he did not sufficiently appreciate the effect of the change on his own family and so he lacked testamentary capacity.
The court found that there was no evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree and that Lord Templeman was aware of his previous Will and Codicil because they were kept to hand in his office and he is likely to have remembered them. The court also found that Lord Templeman was close to Sheila’s grandchildren. Furthermore, the court noted that Lord Templeman was a strong and decisive person.
On the issue of whether Lord Templeman should have followed his own golden rule, the court said it was evidence “of the commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves”. Given Lord Templeman’s intellectual resources, and the rational terms of the 2008 Will the court did not find it surprising that Lord Templeman’s mental capacity was not medically assessed.
The court also noted 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” when the issue of the grandchildren having already been provided for by Sheila was raised.
The court concluded that Lord Templeman did have testamentary capacity at the time his 2008 Will was prepared, and it was admitted to probate.
The issues raised in this case are not unique – particularly the difficulties between children and step-children and it demonstrated the difficulty in succeeding in such a case. One of the main lessons from this case is that impaired short-term memory and slight dementia does not mean that a testator does not have testamentary capacity.
Furthermore, the court found that it was not surprising that the solicitor instructed to prepare the Will by Lord Templeman had not sought approval from a medical practitioner, and that even if he had followed the golden rule, this does not guarantee that litigation would have been prevented.
If you are unsure if your Will could be contested or think there might be a need to contest a Will then call our Contentious Probate team on 0800 84 94 101 who can explain more.
The key differences between Lasting Powers of Attorney and Deputyship
In the Deputyship Department one of the most common questions clients ask us is “What’s the difference between Lasting Powers of Attorney and Deputyship?” The answer is fairly straightforward – a Lasting Power of Attorney (LPA) is a document that you sign whilst you still have mental capacity, appointing someone to be your Attorney to act on your behalf. A Deputyship is when the Court appoints someone to be your Deputy (similar to an Attorney) to act on your behalf, once you have lost mental capacity. Both arrangements appoint someone to act on your behalf when you can no longer manage your affairs, but one takes place before losing capacity (LPA) and one takes place afterwards (Deputyship).
Lasting Powers of Attorney
There are two types of Lasting Power of Attorney, one which deals with your property and financial affairs and one which deals with your health and welfare decisions. You can have either, or preferably both, and you can have the same or different Attorneys for each. Once the documents are signed by both you and your Attorney(s) they also need to be signed by a Certificate Provider, who is a professional person (ideally your GP) or someone who has known you for longer than 2 years. The document is then sent to the Office of the Public Guardian for registration and, once returned, can be used immediately if you lose capacity to make decisions or manage your own affairs (or in the case of a property and financial affairs appointment for convenience if, for example, you were on holiday and needed something signed). You can include various clauses in your LPA, such as giving your Attorneys the power to defer decisions regarding your stocks and shares to a portfolio manager, or not allowing your Attorneys to use the document until a GP has confirmed that you have lost capacity.
Deputyship
A Deputyship Order can only be issued by the Court of Protection. If an individual loses capacity to deal with their own affairs and they have not made a Lasting Power of Attorney then an appropriate person can apply to the Court to be appointed as their Deputy. A Deputy has similar responsibilities to an Attorney, with some additional duties because they have been appointed by the Court.
A Deputyship application is made up of a minimum of four forms which provides the Court with all the necessary information it needs to make an informed decision. The forms are extensive and include details of the protected person’s personal circumstances; their full financial details; a medical opinion confirming lack of capacity and details of the proposed Deputy’s personal and financial circumstances. These forms are sent to the Court with an application fee. At least three people in the protected person’s life must be notified of the application and these can be family, friends and/or their GP if necessary. Once these people have been notified there is a statutory waiting period of four weeks within which they can raise any objections to the application.
Once the notice period has expired the application will be placed in the Court queue to be examined thoroughly and signed off by a Judge. Before an order can be issued the Deputy must pay the first annual bond premium which protects the protected person against losses from Deputy fraud. Once the bond is in place the Court will issue the final Deputyship Order, which is the document which gives the Deputy authority to act.
A Deputy is required by the Court to keep complete records of all income and expenditure of the protected person and to complete an annual report on the anniversary of the Deputyship Order including all of this information.
Costs and Timescales
As you will have gathered, the Lasting Power of Attorney process is much simpler and quicker than that of a Deputyship application.
Our current costs for a Lasting Power of Attorney are £500 plus VAT for one document, £750 plus VAT for two and £1,000 plus VAT for both finance and welfare documents for a couple. A registration fee of £82 for each document is payable to the Office of the Public Guardian. Registration takes roughly two months to complete.
We estimate our costs for a straightforward Deputyship application at between £2,000 and £2,500 plus VAT. In addition to our costs the Court application fee is £365, the annual bond payment is generally between £200 and £400 and there is an annual supervision fee also payable to the Court of £320 (unless the protected person’s assets are below £21,000 when the fee amounts to £35 per annum).
A Deputyship application takes roughly six months from initial instruction to the issue of the final order. During this period the protected person is no longer able to make decisions for themselves or sign cheques or financial paperwork, but neither is the Deputy as they do not yet have authority, leading to a protracted period of ‘no man’s land’ where no-one can settle expenses, enter into new contracts etc.
We are always keen for clients to sign Lasting Powers of Attorney to avoid the necessity of a Deputyship Order later on in life. Any of our Probate Trusts and Wills Practitioners can assist you with your Lasting Powers of Attorney documents. However, when it comes to Deputyships we have a highly experienced Deputyship Team, who specialise in applications to the Court, annual reporting and the day to day running of Deputyship matters for both elderly clients, adults lacking capacity and brain damaged infants. Because our team are dealing specifically with these matters on a daily basis they are able to deal with your matter more quickly and efficiently than other firms who may only deal with these types of matters sporadically. With most professional costs incurred in connection with Deputyship matters being assessed by the Court before settlement, you could pay the same professional fees for an excellent service as for a less efficient service elsewhere.
When you make the decision to move home but you need to sell one home to buy the next, like the majority of home movers, the process generally starts with getting your home valued by one or more estate agents. You have chosen your agent, now you need that offer to be able to start the whole process, a process in England and Wales which is often criticised for being unnecessarily slow. Because our solicitors are both legal professionals and providers of a customer-focused service they understand that communication is key to alleviating these frustrations but it is also possible for the home seller to use the time between entering the market and accepting an offer to instruct a solicitor and therefore be instrumental in cutting the overall transaction time by weeks.
There are two or, if you are a leaseholder, three essential forms provided by the Law Society that must be completed in order to be sent to your buyer’s solicitor. These forms are the Property Information Form, the Leasehold Information Form and the Fittings and Contents Form, legally known as TA6, TA7 and TA10. They are lengthy and often require the seller to provide information and evidence of certain things, things that a buyers solicitor is likely to ask for down the line if they are not provided with an initial contract package. Some of the information you will not be able to provide perhaps until you have found your next home as you may not know what you need to take from your current home but the majority of the information you will be required to provide you should be able to obtain.
Common items of information that take sellers time to find or obtain are often things like planning permissions, building regulation certificates, guarantees, electrical and gas certificates and insurance policies etc. Leasehold sellers often struggle with things like providing evidence of consent for alterations and finding out who actually deals with things like block insurance and aspects of management. If these things are collated prior to finding a buyer we will often see a number of weeks come off of the time taken for the conveyancing process to be completed.
As a firm Mayo Wynne Baxter can help you to get these few steps ahead by taking your formal instructions to act for you in your sale at the point of you marketing your home. On receiving your instructions we are obliged to run Anti Money Laundering checks which are done on receipt of your identification documents, we can then send out your initial letters with the aforementioned forms for you to complete without the pressure that having to find all the relevant information in a short space of time may put you under if you wait until you find your buyer.
People are often concerned that if they do this they will incur fees but apart from the £6 per person it costs for the Anti Money Laundering checks we are able to get you this far into the process at no cost with the view that once your buyer is found we will be in a position to send a full contract package weeks earlier than if we had to wait for all the required information and forms to be completed after you had accepted an offer. This means that you will move quicker just by engaging us to act for you at the point that you put your home up for sale rather than waiting until your buyer has been found.