Goss-Custard and another v Templeman and others [2020] EWHC 632 (Ch)
Lord Templeman was known as the High Court Judge who laid down the ‘Golden Rule’ formulated in Kenward v Adams (1975).
The ‘Golden Rule’ sets out that the making of a Will by an aged or seriously ill testator should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings.
Rather ironically, Lord Templeman (Deceased) changed his Will in 2008 but did not follow his own ‘Golden Rule’.
Background
The Deceased made his first Will in 2001, which was subject to a codicil that the Deceased made in 2004. The terms of the codicil left his house to his son and daughter in law (Defendants). The Deceased made a further Will in 2008 in which he left the house to his stepdaughters (Claimants).
From 2006, the Deceased started to experience difficulty with his short term memory. This gradually deteriorated over the remaining years of his life until his death in 2014. It is important to note that the Deceased was never diagnosed with or treated for dementia.
The Defendants argued that the 2008 Will was invalid and that the Deceased lacked testamentary capacity when making the Will. They sought to rely on the fact that the Deceased had not followed the ‘Golden Rule’ (among other reasons).
The effect of invalidity of the 2008 Will would mean that the Deceased’s final Will would actually have been the Will made in 2001, subject to the 2004 codicil, meaning that the Defendants would have inherited the Deceased’s property.
Decision
It was decided that the Deceased:
“was able to comprehend and appreciate those who had a call on his estate and was not suffering from a delusion (or illusory belief) that poisoned his mind, and so he had testamentary capacity in August 2008 when he made the 2008 will”.
Comment
It is always best practice to follow the ‘golden rule’ to try and avoid any disputes as to testamentary capacity.
This case does, however, highlight that even where the ‘golden rule’ has not been followed the Court may still infer that the Deceased had the requisite capacity to make a Will.
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