Goss-Custard v Templeman and the Golden Rule

We recently acted for the claimants in a dispute over the estate of Lord Templeman. Below is a summary of the case and the High Court's decision as well as a video in which Lucy Gill and Elizabeth Ware discuss in more detail the background, issues in dispute and judgement.

 Lord Sydney Templeman was a distinguished law lord and former High Court judge. He passed away in 2014. He presided over a number of notable cases, including Kenward v Adams [1975] and Re Simpson [1977] whereby he coined the term 'the golden rule':

'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 or findings.'

Lord Templeman did not follow his own golden rule when he changed his will in 2008, at the age of 88. His son Michael Templeman, a retired barrister, sought to challenge his father's 2008 Will on the basis that he lacked testamentary capacity, sighting his failure to follow his own rule as one of the reasons.

The Honourable Mr Justice Fancourt gave judgment on 19 March 2020, upholding the validity of Lord Templeman's will.

Background

Templeman had two sons, Michael and Peter, by his first wife, Margaret. After Margaret died, the lord married Sheila Edworthy.

Sheila had one son, Bruce by her first marriage. After Sheila's first husband died, she married John Edworthy, the father of Jane Goss-Custard and Sarah Edworthy. Sheila and John designed and built the property known as Mellowstone, in Exeter in the 1970s and it was a pivotal base for the entire family.

After John died, Sheila continued to live in Mellowstone and maintained her close relationship with Jane and Sarah, whom she treated as her daughters. When Sheila and Lord Templeman married in 1996, he moved in to Mellowstone, where they spent many happy years.

In 2004, Sheila's son Bruce died, leaving her a property in Rock. Sheila varied Bruce's will to provide for that property to pass to Jane and Sarah.

Sheila sadly passed away in June 2008. Two months later, Lord Templeman instructed his local solicitor to make a new will. In it, he left his estate to his sons Michael and Peter Templeman, some cash gifts to his housekeeper and gardener, and Mellowstone and its contents that he inherited from Sheila to Jane and Sarah.

When Lord Templeman died in 2014, Michael Templeman's wife, Lesley was appointed as the executor of her father in law's estate. She refused to administer his estate in accordance with the 2008 will, on the basis that she considered that he lacked testamentary capacity to make the will.

Lesley and Michael's basis for this assertion was that the lord had forgotten the terms of his previous will and codicil when he made his 2008 will. His 2001 will and 2004 codicil provided that if he survived Sheila and inherited Mellowstone, on his death it would pass to his grandchildren and to the residuary beneficiaries of Sheila's estate. Sheila made a 2004 will under the same terms.

Michael and Lesley therefore claimed that Sydney had forgotten this arrangement when he made his 2008 will. In forgetting the terms of his previous testamentary dispositions and the fact that Jane and Sarah had already received a property in Rock in 2004, they claimed that Sydney did not comprehend and appreciate the calls upon his bounty and that he ought to have considered his grandchildren and the Sheila's residuary beneficiaries when he made his 2008 will. By failing to do, they argued that he did not satisfy all the limbs in Banks v Goodfellow, the common law test for testamentary capacity. In addition, supported by the aged case of Re Belliss [1929], they claimed that the lord was acting under an illusory belief that he must put right a non existent wrong (i.e. that he did not have a will providing for the gift of Mellowstone).

Judgment

The judge had to consider firstly whether Lord Templeman had remembered his 2001 will and 2004 codicil when he made his 2008 will.

The judge found on the evidence that he considered Lord Templeman would have remembered his previous testamentary dispositions for several reasons including:

• His 2001 will and 2004 codicil were easily located in the lord's study and the witness evidence showed that he contemplated his will from time to time.
• When the will drafting solicitor took will instructions, whilst he did not expressly refer to the previous will and codicil in his attendance note or the reason for the departure, he did refer to his 2003 Letter of Wishes regarding funeral wishes implying that it is very likely that the previous testamentary dispositions were also referred to.
• Lord Templeman was not suffering from any mental impairment in 2004 and therefore the memory of these events would likely have been accessible to him. The witness evidence showed that from 2006, the lord showed signs of short-term memory loss, but that he could remember significant events (such as arranging the meeting with the will drafting solicitor) but struggled with more trivial events such as remembering to put a pad of paper and pen by the phone.
• He made pecuniary legacies to the same individuals (albeit for lower amounts).

The judge found that even if he concluded that the lord had forgotten the terms of his 2001 will and 2004 codicil, he would still have held that he had testamentary capacity.

This is because a testator does not have to have all the facts in which to make a decision. He does not have to know the terms of his previous will, the facts about each of his potential objects or to have correctly understood the financial position of his objects. Lord Templeman did not have to justify the difference between his previous testamentary dispositions and his 2008 will in order to have testamentary capacity, he simply had to be capable of understanding the calls to his bounty.

In addition, the judge dismissed Michael and Lesley's argument that the lord's reasons for making the 2008 Will were based on an illusory belief (in their view equivalent to a delusion). He confirmed that even if the lord had forgotten the terms of his previous will and codicil, it falls far short of the kind of delusion needed to negate testamentary capacity and would have been a mere mistake.

The judge held that Michael and Lesley had taken an overanalytical approach and had overlooked the emotional feeling between Lord Templeman and Jane and Sarah. Mellowstone had been a place of many happy memories for Sydney, Sheila, Jane and Sarah and even more so between 2004 and 2008 when Sheila's health began to decline. In addition, the judge found that it was no coincidence that Sydney made lifetime gifts of £120,000 to his grandchildren which were the same amount as provided for in his 2004 Codicil.

Based on the evidence, heard over a 7 day trial, including medical evidence from Professor Robert Howard, the judge concluded that Lord Templeman enjoyed a close and loving relationship with Jane and Sarah and that his decision to leave Mellowstone was based on this mutual love and affection and that most importantly he had testamentary capacity to make this decision.

The full judgment can be found here.