Claims brought to challenge the validity of a testator’s Will based on a lack of testamentary capacity are heavily reliant upon evidence, whether that be from friends and family members or from experts.

If a person challenging the Will can prove that on balance, the testator was likely to have lacked the requisite testamentary capacity at the time the Will was executed, then the Court will be expected to declare the Will to be invalid.

Accordingly, it was recognised in the case ofKenward v Adams [1975]that in some cases more consideration must be given to a testator’s mental capacity at the time instructions are taken. In his judgment, Lord Templeman established the ‘Golden Rule’ which provides that where a testator is elderly or has been ill, the Will ought to be witnessed or approved by a medical practitioner who is satisfied as to the capacity and understanding of the testator.

Quite ironically however, Lord Templeman’s own capacity to make a Will later became the subject of a dispute following his death in 2014. The claim was brought by Lord Templeman’s son, Michael who sought to have the 2014 Will set aside on the basis that his father lacked testamentary capacity.

The crux of the dispute related to the property (known as ‘Mellowstone’) which Lord Templeman shared with his second wife, Sheila. By his 2001 Will (and subsequent Codicil dated 2004), legacies were provided for each of his six grandchildren, together with £120,000 to Sheila’s two daughters, Jane and Sarah with any greater value of Mellowstone falling into his residuary Estate to be shared between his two sons, Michael and Peter. By his 2008 Will however, the legacies to the grandchildren had been removed and instead, Jane and Sarah were due to benefit from Mellowstone entirely with the residuary Estate passing to Michael and Peter.

Michael argued that his father’s memory began to deteriorate by May 2006, which was later found to be the early stages of Alzheimer’s disease (as supported by medical evidence). It was also said that Lord Templeman was grief-stricken following the death of Sheila shortly before he executed the 2008 Will, and contemporaneous evidence suggested that grief had exacerbated his condition (albeit he was undiagnosed at the time). Nonetheless, Lord Templeman provided instructions to his solicitor to prepare the 2008 Will.

Remarkably, whilst the solicitor did recognise that Lord Templeman’s short-term memory had declined, the solicitor was satisfied from his own judgment that Lord Templeman was of sufficiently sound mind to execute the 2008 Will. In essence, Lord Templeman’s solicitor had failed to follow the Golden Rule which Lord Templeman himself had established.

In considering the case, Mr Justice Fancourt did eventually find that Lord Templeman had the requisite testamentary capacity to execute the 2008 Will having regard to an expert report obtained post-death. Whilst not surprised that the solicitor did not refer Lord Templeman for a medical assessment having taken into consideration his intellectual capacity and reputation, Mr Justice Fancourt did reiterate the importance of following the Golden Rule. Undoubtedly, this was the foundation upon which the litigation had been borne at a significant cost to all parties which could otherwise have been avoided.

Further information regardingcontesting a Willis available on our website. Alternatively, please contact a member of ourcontentious probate teamwho would be happy to assist.

“Brabners in Lancashire is located at Sceptre Court, Walton Summit. If you would like to discuss anything raised in this article, please give us a ring on 01772 823921, quote “Lancashare” and a member of our team will be happy to assist you. 

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