Testamentary capacity and Lord Templeman’s will
Introduction
On 19 March 2020, Mr Justice Fancourt handed down judgment in the matter of Re Baron Templeman of White Lackington (Deceased) [2020] EWHC 632 (Ch). The case concerned the validity of the last will of Lord Templeman, who sat in the House of Lords from 1982 to 1994. No post about Lord Templeman would be complete without reference to his forthright and uncompromising manner. One of the many accounts of his dealings with Counsel included a case where he had been characteristically robust with Leading Counsel. Having concluded with the Leader he asked whether Junior Counsel wished to make any submissions. ‘Not without a helmet my Lord’ came the reply.
Lord Templeman died in 2014 and the sole issue in the case was whether he had testamentary capacity when he executed his last will in 2008, 6 years before. The 2008 will was neither witnessed nor approved by a medical practitioner.
The claimants (the stepdaughters of Lord Templeman’s late wife) sought to propound the 2008 will, whereas the first and second defendants (the younger son and daughter-in-law of Lord Templeman) contended that it was invalid.
The ‘golden rule’ places a requirement on a solicitor or will writer to assess whether the testator has testamentary capacity, and if necessary, to obtain medical evidence to support this. Incredibly (and in an ironic twist), the development of the golden rule was advanced by Lord Templeman himself in Kenward v Adams ChD 29 November 1975, and Re Simpson [1977] 121 SJ 224 where he determined 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’.
As stated by Mr Justice Fancourt at [116] it is ‘commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves, or believe themselves to be in need of it’.
What was the basis for the dispute?
Had the 2008 will been invalid, his estate would have been distributed according to a will made in 2001, subject to a codicil of 2004. The principal difference related to the property (‘Mellowstone’) in which Lord Templeman had lived from the time of his second marriage in 1996, until his death in 2014.
The background
Under the 2001 will and 2004 codicil, Lord Templeman left £20,000 to each of his six grandchildren and £120,000 to his wife’s residuary beneficiaries in the event that his wife predeceased him. She also left Mellowstone to him in her will.
In 2006, Lord Templeman started to experience difficulty with his episodic memory which gradually deteriorated until his death in 2014. Expert evidence attributed this to early symptoms of dementia, although there was no diagnosis of dementia during his lifetime.
In 2008, two months before his wife’s death, Lord Templeman made a new will leaving Mellowstone to the claimants. He left no legacies to his grandchildren or to his wife’s residuary beneficiaries and left the residue of his estate to his two sons, the second and third defendants.
The argument
The first and second defendants argued that there was no rational explanation for the change in the 2008 will regarding Mellowstone. They also argued that it should be inferred that Lord Templeman had forgotten the arrangements made in 2004 and was acting under an illusory belief that ‘in fairness’ Mellowstone should be left to the claimants. They submitted that Lord Templeman lacked testamentary capacity because he did not sufficiently appreciate the relative nature and extent of the calls upon his bounty from his own family and from his wife’s family.
What was decided?
Judgment was entered for the claimants. The Judge held (inter alia) that:
(1) The 2008 will had been prepared by an experienced solicitor. There was no expert evidence of lack of capacity, nor was there any cogent evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree (except in regard to episodic memory).
(2) Given Lord Templeman’s intellectual resources and the fact that the new will was rational on its face, it was not incumbent on his solicitor to suggest that he was medically assessed.
(3) In the final years of his wife’s life, Lord Templeman had become very close to the claimants and they had helped him to care for her through her illness. All the evidence suggested that he gave Mellowstone to them because that was what he wanted to do.
(4) Lord Templeman was not suffering under any illusory belief, but was able to comprehend and appreciate those who had a call on his estate and had testamentary capacity when he made the 2008 will.
Points to take away
(1) In contrast to his reputation as ‘an uncompromising judge’ [at 111], the Judge acknowledged the evidence pointing to an emotional and empathetic side to the testator.
(2) Paragraphs 12-19 provide a useful summary of the law regarding testamentary capacity. Fancourt J at [12] approached the matter on the basis that the modern formulation set out in Burns v Burns [2016] EWCA Civ 37 at [33] is to the same effect as the original language in Banks v Goodfellow (1869) LR 5 QB 549, and does not substitute a legally different test. The testator must therefore:
(a) Understand that he is giving his property to one or more objects of his regard;
(b) Understand and recollect the extent of his property;
(c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will;
(d) Ensure that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if the mind had been sound, would not have been made.
(3) If a will is rational on its face, and duly executed, there is a presumption of testamentary capacity and the initial onus is on the defendants to adduce evidence capable of showing that the testator lacked testamentary capacity. If that onus is discharged, the burden reverts to the claimant to prove that the testator had capacity.
(4) Capacity should be addressed as an evaluation of all the evidence available to the court at trial.
(5) An overly analytical approach is unhelpful where there is clear evidence of closeness of relationships.
(6) (Obiter) a testator does not have to have all the facts with which to make a correct or justifiable decision, but has to have the capacity to decide between competing claims.
(7) (Obiter) for a will to be valid, the testator does not need to be aware of the terms of existing or previous wills, or have in mind the reasons underlying the gifts in them.
Concluding thoughts
Although it is not incumbent on a solicitor to suggest that the testator is medically assessed, and whilst the ‘golden rule’ is not itself a ‘touchstone of validity’ (Scammell v Farmer [2008] EWHC 1100 (Ch)), this case highlights the importance of having a medical professional present at the witnessing of the will if there is any question about testamentary capacity. Had Lord Templeman taken his own advice, it is likely that the claim would have been unnecessary.
Although it may be difficult to suggest to an elderly client, or a client who displays variable behaviour, that there should be an assessment of their testamentary capacity by a medical practitioner, it is nonetheless a fundamental step to take when preparing a will, and is likely to reduce the potential for the will to be challenged subsequently.
The full judgment can be found here.