Lord Templeman and the Golden Rule

Sydney William Templeman was a British judge. Born in March 1920, the son of a coal merchant, in 1970 Lord Templeman became Attorney General of the Duchy of Lancaster before being appointed a High Court judge, Chancery Division in 1972 followed by promotion to the Court of Appeal in 1978, becoming a Law Lord in 1982.

Lord Templeman had two sons, Peter and Michael, with his first wife, Margaret. Following Margaret’s death Lord Templeman married Sheila Edworthy in 1996.

Sheila had one son, Bruce, from her first marriage and two daughters with her second husband, John: Jane and Sarah. Sheila and John built a house known as Mellowstone, in Exeter; John died in 1995. When Lord Templeman married Sheila he moved to Exeter to live in Mellowstone and lived there until he died in 2014.

Under the 2001 Will and 2004 codicil, if Sheila predeceased him and left Mellowstone to him under her will, Lord Templeman left £20,000 free of tax to each of his six grandchildren and £120,000 free of tax to Sheila’s residuary beneficiaries. Any greater value of Mellowstone would fall into his residuary estate, which was to be shared by his two sons, Peter and Michael.

Sheila died in June 2008, two months before the 2008 will was made, and Mellowstone was left to Lord Templeman by her last will. In the 2008 will, Lord Templeman left Mellowstone to Jane and Sarah. He left no legacies to his grandchildren or Sheila’s residuary beneficiaries and, after some modest gifts, the entire residue of his estate was left to Peter and Michael in equal shares.

Lord Templeman expressed the ‘Golden Rule’ concerning mental capacity in the case of Kenward v Adams [1975] CLY 359:

“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, however, straightforward matters may appear, and however difficult or tactless it may be to suggest the precautions be taken; 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”.

It has been held that the golden rule is a rule of solicitors’ good practice, having the potential to reduce the risk of a claim of lack of testamentary capacity and should, therefore, be offered to testators as an additional precaution even if not observed.

At the time of making his own will in 2008, Lord Templeman was 88 years old and suffering from mild dementia and short-term memory loss. Despite this, no medical practitioner assessed Lord Templeman’s capacity. Lord Templeman’s son and daughter-in-law sought to challenge the validity of the will for lack of testamentary capacity.

The Claimants contended that there was no rational explanation for the change that Lord Templeman made in his 2008 will. The issue to be decided was whether Lord Templeman had testamentary capacity when he executed the will before a solicitor and another witness in August 2008. The effect of invalidity of the 2008 will would be that Lord Templeman’s final will was one that he made in 2001, subject to a codicil of 2004.

The defendants contend that there was, is and can be no rational explanation for the change that Lord Templeman made in his 2008 will as regards Mellowstone. The explanation that he was acting under an illusory belief that he had not provided in his will for the eventuality that he inherited Mellowstone from Sheila. That illusory belief provided a false premise for the 2008 will and therefore he lacked testamentary capacity.

The law relating to testamentary capacity is as set out in Banks v Goodfellow (1869) LR 5 QB 549, paraphrased in more modern language in Burns v Burns [2016] EWCA Civ 37, as follows:

“[33] … the testator must:
(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.”

The Court believed that the basis of a challenge to the validity of the 2008 Will was narrow; as the Will was rational on its face and duly executed; Lord Templeman sufficiently understood the act of making a will and its effect, and sufficiently understood the extent of the property of which he was disposing. It is not in dispute that he knew and approved of the contents of the will.

Although Lord Templeman was never diagnosed with or treated for this disease during his lifetime he started to experience early symptoms of dementia attributable to incipient Alzheimer’s disease in 2006. Apart from a short stay in hospital in early 2014, he continued to live in Mellowstone for the rest of his life, supported to an increasing extent by Jane and her husband, John, by Sarah and her partner Mike, and by professional nursing support only in 2014.

Lord Templeman’s working memory gave him no difficulty. He was able to capture and use information, converse and be witty and observant, however, he would commonly forget what had been said earlier in a conversation or repeat himself.

The Court found “no cogent evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree”. he was aware of his 2001 will and 2004 codicil as they were made before the onset of any impairment so he would likely have remembered them, and the documents were easily found in his study and therefore would have considered them before seeing his solicitor to discuss and execute the 2008 will.

Lord Templeman had become very attached to Shelia, Jane and Sarah in the years preceding his death. Moreover, all the evidence suggested that Lord Templeman was at all times a strong and decisive person and when he made his new Will, he was not unduly hampered by his difficulty with short-term memory loss.
It was argued that if Lord Templeman had a functioning memory then he would have heeded his own golden rule. The Court held that while observing that medical assessment should have occurred to avoid such dispute, his lordship’s failure to do so was instead evidence

“of the commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves”

Given Lord Templeman’s reputation, and even at his age his evident intellectual resources and the perfectly rational terms of the new will on the face of it, the Court was not surprised(the Golden Rule notwithstanding) that his solicitor decided not to enquire further or suggest that he be medically assessed.

The Court dismissed that Lord Templeman was subject to a delusion, or illusory belief, which undermined his ability justly to decide., holding that even a simple mistake, which was attributable to his poor memory fell

“far short of the kind of “delusion” needed to negative testamentary capacity”.

Lord Templeman was held to have had testamentary capacity as he was able to comprehend and appreciate the claims to which he ought to give effect, was not suffering from a delusion that poisoned his mind. Accordingly, the 2008 will was admitted to probate.

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