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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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It's the Lord's Will
09 April 2020

Regardless of the identity of a testator, it is important to remember that in order to be valid a will must be executed correctly and the testator must have the requisite testamentary capacity to do so. Judgment has recently been handed down in the case of Goss-Custard V Templeman which involved a challenge to Lord Sydney Templeman’s will on the basis that he lacked testamentary capacity.

Lord Sydney was a distinguished law Lord and former High Court judge. He died in 2014. Throughout his distinguished career, Lord Sydney presided over a number of notable cases including Re: Simpson in 1977 where he coined the term “golden rule”.

The Golden Rule

The existence of the golden rule dates back to the 1800s having first been considered in the case of Banks V Goodfellow in 1870. In Banks, the High Court held that in order for a testator to be capable of making a valid will, he must be able to:

  • understand the nature of the will and its effect;
  • have some idea of the extent of the property which he is disposing of;
  • comprehend and appreciate the claims to which he ought to give effect.

In addition, the testator must have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

This common law test became known as “the golden rule” has stood the test of time and Lord Sydney reiterated the importance of it in the Simpson case when he gave judgment stating:

“that the making of a will by an aged or seriously ill testator ought 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 and finding.”

Unfortunately, when making his last will Lord Sydney omitted to follow his own advice and the golden rule!

The 2008 will

By his last will executed in 2008 Lord Templeman left his estate to his two sons but the property, Mellowstone to his two step-daughters.  He also made some specific cash gifts.

By the time of execution of this will he had begun to experience difficulty with his short-term memory loss. Despite this, no expert medical evidence had been obtained at the time of execution of his will.

Under his previous will made in 2001 (together with a codicil in 2004) if Lord Sydney survived Sheila then Mellowstone was to pass to his grandchildren and residuary beneficiaries of Sheila’s estate. Sheila’s will also had a similar provision.

Mellowstone had been inherited by Lord Sydney from his wife, Sheila when she died in June 2008. It had been a property built by her and her late husband on land which Sheila had owned following the demise of her first marriage. It was following Sheila’s death in 2008 that Lord Sydney had made his new will.

The proceedings

One of Lord Sydney’s sons, Michael issued proceedings seeking to challenge the 2008 will on the basis that his father lacked testamentary capacity when he executed it. Michael, a retired barrister himself, sighted his father’s failure to follow one of his own rules as a reason. Michael also contended that his father had forgotten the contents of his previous will (and codicil).

In addition, following the death of her son in 2004 Sheila had arranged to vary his estate so that his property which she had inherited upon his death instead passed to her two step-daughters and her grand-daughter. This fact, Michael said further demonstrated his father’s lack of testamentary capacity, being evidence that he did not comprehend or appreciate the claims upon his estate and that he ought to have considered his grandchildren as well as Sheila’s residuary beneficiaries.

Judgment

The court first had to consider whether Lord Sydney had remembered his previous will (and codicil). The judge found on the evidence that he would have done so. There were various reasons for this but most notably was the fact that there were copies in his study which he considered from time to time.

Furthermore, Lord Sydney was not suffering from any mental impairment in 2004 and therefore the memory of these events would likely have been accessible to him – the evidence showed that although from 2006 he was suffering with short-term memory loss, he could remember significant events.

The judge stated that even if he had found that Lord Sydney was unlikely to have remembered his previous will (and codicil) he still would have found he had testamentary capacity. This was because it was not necessary for him to have known the terms of any previous will, understood the facts of each potential asset or to have correctly understood the precise financial nature of all the assets – all he had to do was simply to understand all claims to his estate.

The judge considered Michael had taken an over-analytical approach and had overlooked the emotional relationship between Lord Sydney and his step-children and what Mellowstone had meant to them as a family home, particularly in the latter stages of Sheila’s life.

Conclusion

Despite the court upholding Lord Sydney’s will this case still demonstrates the importance of adopting the golden rule when executing wills for elderly or seriously ill testators. Had Lord Sydney followed his own rule it would have been unlikely that his son would have brought the proceedings that he did and although the will was upheld in the will no doubt relations between the wider family are no somewhat strained not to mention the costs that will have been expended in dealing with the proceedings.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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