Capacity to Make a Will: The Golden Rule

One of the requirements to make a valid will is that the person has the requisite mental capacity to do so. This is referred to as ‘testamentary capacity’.

The Golden Rule

In the case of Kenward v Adams (1975) Lord Templeman highlighted the importance for solicitors to consider a testator’s mental capacity when preparing a will. Lord Templeman stated that:

“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 of the capacity and understanding of the testator, and records and preserves his examination and finding”.

This is now more commonly known as ‘The Golden Rule’.

Subsequent case law established that although this is not a legal rule, it is good practice and a relevant consideration in circumstances where a testator’s capacity is likely to be contested.

Goss-Custard & Anor v Templeman & Ors (2020)

Ironically, when Lord Templeman made his own will in August 2008, aged 88 years old, the Golden Rule was not followed. Lord Templeman was suffering from mild dementia and short-term memory loss at the time that the will was made. However, the solicitor who prepared Lord Templeman’s will did not instruct a medical professional to confirm that he had capacity.

Lord Templeman’s 2008 will made changes to his previous 2001 will and 2004 codicil. The most notable change was regarding the gift of a property (“Mellowstone”), which he had inherited from his late wife, Sheila. Under his previous will, 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. However, the 2008 will provided that Mellowstone was left to Sheila’s two step-children, Jane Goss-Custard and Sarah Edworthy (“The Claimants”).

Following Lord Templeman’s death in 2014, his son, Michael Templeman and his daughter-in-law, Lesley Templeman (“The Defendants”) opposed an application to propound his 2008 will on the basis that he lacked testamentary capacity at the time that it was made.

The Defendants claimed that he must have forgotten his earlier will and codicil because there was no rational explanation for the change that Lord Templeman made in his 2008 will as regards to Mellowstone.

The Defendants also argued that Lord Templeman’s failure to suggest that he be medically examined in accordance with his own Golden Rule demonstrated that his mental functions were impaired.

In the absence of expert medical evidence prepared at the time of making the 2008 will, the Court had to rely on evidence from expert witnesses who concluded that it was highly probable that Lord Templeman had testamentary capacity at the time he made the 2008 will. On the basis of this and other evidence before the Court, Mr Justice Fancourt found that Lord Templeman did have testamentary capacity at the time when it was made. The 2008 will was therefore upheld and admitted into probate.

Mr Justice Fancourt attributed Lord Templeman’s failure to ensure his solicitor followed the Golden Rule as evidence of ‘…the commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves’. Mr Justice Fancourt stated that given Lord Templeman’s reputation and evident intellect he did not find it surprising that the solicitor failed to refer him for a medical assessment. However, Mr Justice Fancourt also noted that the litigation demonstrates that Lord Templeman’s solicitor should have instructed a medical professional to carry out a capacity assessment. Lord Templeman’s Golden Rule was therefore reaffirmed in a case concerning his own will.

This case demonstrates that failure to follow the Golden Rule does not automatically mean that a challenge on the basis of lack of testamentary capacity will be successful. However, it also provides a reminder to solicitors that by following the Golden Rule expensive litigation can be avoided following a testator’s death.

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