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.