Lord Templeman was a highly respected High Court judge who laid down the ‘golden rule’ in the 1975 case of Kenward v Adams:

‘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’.

The ‘golden rule’ is not, in fact, a rule at all. It is guidance that ought to be followed if the person making the will wants to do what they can to avoid its validity being challenged after their death. It’s not definitive, so a will can still be challenged even if a medical report has been obtained. Conversely, failing to get a medical report doesn’t mean that the will is invalid.

When Lord Templeman changed his will in 2008 at the age of 88 he did not follow his own golden rule. The inescapable irony is that his will was challenged after his death by his son, on the ground that he lacked testamentary capacity.

The will was made shortly after Lord Templeman’s second wife, Sheila died. In it, he left his home, Mellowstone in Exeter, valued at £580,000, to Sheila’s stepdaughters; Jane and Sarah. He had developed close bonds with them and saw them much more often than his own sons, Peter and Michael.

Following his death from dementia in 2014 aged 94, Michael (a retired barrister) and wife Ann challenged the 2008 will, arguing that his father’s decision was ‘irrational’ and that an earlier will, made in 2001 (amended by a codicil in 2004) should instead be upheld. If the 2008 will was found to be invalid, Lord Templeman’s 6 grandchildren would have received £20,000 each, another £120,000 would have gone to members of Sheila’s family, with the remainder passing equally between Peter and Michael. Jane and Sarah would not have got Mellowstone.

It is worth noting that Mellowstone had originally belonged to Sheila. She and Lord Templeman lived there together from 1996 when they married. In 2004 the couple undertook a joint financial planning exercise which involved Sheila making a will leaving the property to Lord Templeman to ensure that he could remain there should she die before him, as in fact happened.

It was agreed that from 2006 Lord Templeman had started to have difficulties with his short term memory although he was never diagnosed with dementia during his lifetime. He lived at Mellowstone for the rest of his life. The judge in the case found that 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.”

He went on to say that lord Templeman was at all times a:

‘strong and decisive person, as well as someone who was concerned to do the right thing…’

It was common ground that the 2008 will, which was prepared by an experienced solicitor was on the face of it, rational and properly executed and that Lord Templeman understood the act of making a will. It was also accepted that he understood the contents of the will.

The only, narrow, reason for the challenge was that the situation in 2008 was the same as it was in 2004; it was argued that there was no need for the new will in 2008 and so Lord Templeman must have forgotten about the arrangements that had been made then. If he was acting in 2008 in the mistaken belief that he had not already provided for what should happen to Mellowstone on his death, the argument ran, then he lacked testamentary capacity because he had failed to ‘comprehend and appreciate the claims to which he ought to give effect’ (i.e. those of his sons).

The judge found that the argument failed to recognise the ‘emotional journey’ between 2004 and 2008; that Lord Templeman had developed a sense that Mellowstone was properly to be left with Sheila’s family. Even if he had forgotten the terms of his 2004 codicil, the judge made it clear that he would still have found that he had the necessary capacity to make a will.

The High Court therefore upheld the 2008 Will and found that Lord Templeman had testamentary capacity to make the will—he was not ‘subject to a delusion or fixed belief’.

The case is a timely reminder that just because the maker of a will is elderly and may be forgetful, a challenge should not be brought unless there is strong evidence in support. Judges will continue to protect the principle that capacity is presumed to exist and the burden of proving a lack of mental capacity in relation to a will, is very heavy.

If you have a similar matter and need legal help or advice, please get touch on our free phone 0800 8 60 62 65.

Sarah Young Director & Solicitor – Litigation