18 May 2020 by Olivia Pisapia

The importance of following your own advice – Goss-Custard v Templeman and the Golden Rule

Lord Templeman was a renowned former High Court Judge and Law Lord, who is known for his significant contribution to English Law, but perhaps most notably for his judgment in the landmark case of Kenwood v Adams (1975) where he established the ‘Golden Rule’:

“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… 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.”

Ironically, over 30 years later, Lord Templeman’s son sought to challenge the validity of his father’s last Will on the basis that, amongst other points, the ‘Golden Rule’ had not been followed and that his father lacked testamentary capacity.

Brief facts of the case

Lord Templeman married Sheila Edworthy in 1996 and thereafter moved to live with her at her home in Exeter (known as Mellowstone). Sheila had two step daughters, Jane and Sarah, from her previous marriage and Lord Templeman had two sons, Michael and Peter, from his first wife.

Lord Templeman passed away in 2014 and he had executed his last Will in 2008, leaving Mellowstone to Sheila’s stepdaughters, Jane and Sarah.  The bulk of the remainder of his estate was to be split equally between his two sons, Michael and Peter.

Michael, a barrister, argued that Lord Templeman did not have capacity at the time he made the 2008 Will and argued that his estate should be distributed in accordance with his earlier 2001 Will and a Codicil made in 2004.

A medical practitioner had not witnessed or approved the 2008 Will and expert evidence showed that Lord Templeman had begun to experience short term memory loss from 2006 which is said to be attributable to early onset dementia.

Michael claimed that there was no real reason why his father would change his Will in 2008, and argued that he must have been under some illusionary belief that he had not provided for Jane and Sheila adequately in his earlier Will. Due to this illusionary belief, Michael claimed that his father did not sufficiently appreciate the relative nature and extent of the calls upon his estate from his own family and, therefore, he did not have testamentary capacity.

Court’s decision

Judge Fancourt concluded that there was no evidence to suggest that Lord Templeman’s mental functioning was impaired to any significant degree at the time of making the 2008 Will.

It was ultimately decided that, when Lord Templeman made his 2008 Will, this was not because he had forgotten the effect of his earlier Will, but rather it was because he wanted to ensure that Mellowstone remained in Sheila’s family after his death and was not sold and shared out.

The Judge went on to state that “a legalistic argument overlooks the emotional journey that Lord Templeman, Sheila, Jane and Sarah had undertaken in the intervening 4 years.”

The Judge rejected the argument that Lord Templeman was suffering from any illusory belief that a wrong had been done, and further reiterated that the reason for making the 2008 Will was because of the love and affection he felt for Jane and Sarah.

Further, even if he had been of the view that Lord Templeman had forgotten his earlier Will, the Judge found that he would still have concluded that he had testamentary capacity as Lord Templeman did not need to be able to justify the difference between an earlier Will and a later one.  All that was necessary was for Lord Templeman to be able to inform himself about the claims on his estate.

In terms of the Golden Rule, the Judge concluded that, given Lord Templeman’s intellect and considering that he had completely rational grounds for making a new Will, it was not surprising that the solicitor who prepared the 2008 Will did not enquire further and suggest that a medical assessment was carried out. However, the Judge did go on to note that the litigation clearly demonstrates why the solicitor should have carried out a capacity assessment.

This case is a stark reminder to solicitors that, no matter how rational and logical something seems or how someone’s capacity may seem sufficient at the outset, it is always important to apply the Golden Rule to avoid expensive and disproportionate litigation further down the line.

If you are considering instructing a solicitor to prepare a Will for you, our Wills and Probate team are able to assist with this and can be contacted here.


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