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Testamentary capacity: possible indications of early stage dementia and the “golden rule”

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Posted by Laura Abbott on 07 April 2020

Laura Abbott Associate

Lord Templeman was a very well renowned member of the judiciary and his legacy in respect of private client law continues to dictate best practice today. Lord Templeman is particularly known for his advent of the “golden rule” surrounding testamentary capacity. Despite this history, ironically, after his death in 2014 there was a dispute over his own will. The root of the argument was whether Lord Templeman had testamentary capacity when he made his will in 2008.

This is the case of Goss-Custard v Templeman & Ors. 

The test as to whether a person has the requisite capacity to make a will was set out in the 1870 case of Banks v Goodfellow.  Under that test, the testator should understand:

  1. the nature of his act and its effect
  2. the extent of the property of which he is disposing; and
  3. the claims to which he ought to give effect.
  4. must not have a disorder of the mind or insane delusion, which ultimately brings about a disposal of his property which he would not have made if he had been of sound mind.

The dispute surrounding Lord Templeman’s will arose largely from the third and fourth limbs.  His son claimed that Lord Templeman was under a delusion as to the contents and impact of his earlier will, so when he was making his new will he was operating under a mistaken belief as to the provision he had already made for his family. To assess these issues, the court considered:

  1. Whether forgetting the exact contents of a previous will would illustrate a lack of testamentary capacity.
  2. If mild (undiagnosed) dementia would have impacted Lord Templeman’s capacity.
  3. How to define a “delusion” as set out in the previous case law.

Lord Templeman started to experience memory problems so far back as 2006 but he was never tested for, and therefore diagnosed with any problems.  His condition deteriorated over the remaining years of his life.  He made his will in 2008.  Expert evidence adduced to the court suggested that, despite the anecdotal evidence that Lord Templeman may have struggled with some elements of recall around the time, his short-term memory problems did not mean he did not have sufficient testamentary capacity.  

In addition to this, the analysis surrounding the definition of “delusion” was notable. Lord Templeman frequently worried about his tax position and was keen to ensure his affairs were in order. Some of the evidence suggested that he would often wake in the early hours of the morning worrying about this, and that a reminder note was drawn up for him by relatives and left near his bedside. Once Lord Templeman read this reminder, it was said that he grew calm and was no longer concerned. The issue, it was said, was his memory rather than his capability to rationalise his thoughts and fears. The court decided that a “delusion” was a persistent worry or concern that was ill-founded and was one which would not abate in the face of reason. In this case, reason was the reminder notes. Therefore, Lord Templeman was not subject to a delusion, but simply that, at times, his memory failed him and that troubled him.

Lord Templeman’s will was professionally prepared and his solicitor recorded that he had no concerns about his client’s capacity.  The Golden Rule was however not followed.  This is “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”.  The family sought to argue that Lord Templeman not ensuring that his own rule was followed, when he made his new will at age 88, was evidence of his own lack of capacity.  This was given short shrift by the judge who confirmed that a failure to follow the rule is not automatic evidence of a lack of capacity and that people who are able to give advice to others do not always need to follow it themselves, particularly in cases where they do not consider that they need to.

This case is also of interest to practitioners because of the personalities involved. Contentious probate disputes, by their very nature, are emotionally charged and can escalate, often beyond proportion to the value in the estate.  Lord Templeman was an eminent and distinguished member of the legal community and his son who brought the dispute was also a retired barrister.  This just goes to show that, even in legally minded families, disputes can and do arise. 

About the author

Laura Abbott


Laura specialises in all aspects of contentious probate work and disputed estates.

Laura Abbott

Laura specialises in all aspects of contentious probate work and disputed estates.

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