Testamentary Capacity and the ‘Golden Rule’

The far-reaching impact of Covid -19 across the globe has resulted in a surge of people wanting to update their wills.  In light of this rather sullen prospect, an interesting recent judgement in the case of Re: Baron Templeman of White Lackington (Deceased) [May 2020] was made in which the subject of ‘testamentary capacity’ and the ‘Golden Rule’ came into focus. One of the most interesting aspects of this case is that Lord Templeman was the testator of the contested will.

Lord Templeman introduced the Golden Rule in the case of Kenward v Adams [1975] in which he stated:

“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…. the making of a Will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself with the capacity and understanding of the testator, and records and preserves his explanation and finding”

Consideration of the Golden Rule has since been recognised as good practice, particularly where the testator’s capacity is likely to be contested.

In the case of Lord Templeman, he executed his will in 2008 at the age of 88 whilst suffering from mild dementia and short-term memory loss.   At the time of signing his will however, there was no medical practitioner present.

Lord Templeman had two children from his first marriage and after the death of his first wife Margaret; he married his second wife Sheila, who also had two children from previous marriages.

Lord Templeman’s 2008 will made significant amendments to his previous will made in 2004, most notably the gift of the property (“Mellowstone”) he inherited from Sheila when she passed away.

The 2008 will provided that “Mellowstone” would pass to Sheila’s step-children rather than being shared amongst his grandchildren and the residuary beneficiaries of Sheila’s estate, an expression made in Lord Templeman’s previous 2004 will.

Upon Lord Templeman’s death in 2014, his son and daughter-in-law refused to administer his estate in accordance with his 2008 will on the basis that he lacked testamentary capacity when making it.  The principal basis for the challenge was the assertion that Lord Templeman had forgotten he had executed his previous 2004 will because there was no rational explanation for the changes made.

Mr Justice Fancourt upheld the 2008 will, finding that Lord Templeman did have testamentary capacity at the time of making it.  Mr Justice Fancourt noted in his judgement that:

“The test of testamentary capacity does not depend on a testator’s ability to judge to a nicety the relative merits of the rival claimants, or judge correctly to what extent their needs have already been met from some other source. It depends on having capacity to appreciate those persons who have a claim and to decide fairly between competing beneficiaries, making provision for some and not for others”

The issues raised in this case are not unique and exemplify that having impaired short-term memory and slight dementia does not result in lack of testamentary capacity on the part of the testator.

The Golden Rule provides further guidance to the judgement made in the case of Banks v Goodfellow [1869-70], which provides for a test based on the following application:

  • A testator must understand the nature of the will and its effect.  This does not require a full understanding of the legal terminology of the will; however, a broad understanding of the will’s effect is essential.
  • A testator must have some idea of the extent of the property of which they are disposing. This need not be a detailed intricate inventory, but the testator must appreciate the extent of their wealth.
  • A testator must be aware of the persons for whom he would usually be expected to provide for (even if he chooses not to) and must be free from any delusion of the mind that would cause him reason not to benefit those people.

Consideration should also be given to the Mental Capacity Act 2005 and its impact on wills executed after 1 October 2007.

Testamentary capacity, like so many other legal concepts is verified by evidence.  It is probably right to suggest that the prominence of the Golden Rule has diminished over time.  It is perhaps utilised as a piece of judicious guidance designed for the protection of solicitors rather than a rule per say.

Where there is potential for contention, it is vital that every opportunity is taken to protect a will from being challenged, which is why following the guidelines established by the Golden Rule and Banks V Goodfellow as well as the principles recognised within the Mental Capacity Act 2005 should always be considered.