If he had applied his own Golden Rule, could litigation have been avoided over Lord Templeman’s Will?
When Lord Templeman died in 2014, the obituaries referred to this retired law lord’s “intellect, bold decisions and…his pithy turns of phrase”. Some of these were deployed in disputed Wills cases.
Yet, six years later, his children and stepchildren were embroiled in litigation about his last Will, made in August 2008 when he was aged 88.
Lord Templeman’s testamentary capacity was the key issue as, two years before he made his last Will, he had started to experience forgetfulness.
Expert evidence at trial attributed his memory loss to early symptoms of dementia.
The irony is this litigation (culminating in a seven day trial in the High Court in London in January 2020) might have been avoided if the so-called Golden Rule, which Lord Templeman introduced in his judgments on testamentary capacity in the 1970s, had been followed.
What is meant by testamentary capacity?
The law on testamentary capacity is still set out in the old case of Banks v Goodfellow  which states that a testator must:
- Understand the nature and act of making a Will and its effects;
- Understand and recollect the extent of his property to be disposed of in the Will;
- Understand the nature and extent of the claims upon him/her, both of those being included in the Will and those being excluded; and,
- Ensure that no insane delusion shall influence his/her will in disposing of this property and bringing about a disposal of it, which, if the mind had been sound, would not have been made.
The decisions on testamentary capacity emphasise that this is not a memory test. It is about capacity to understand.
What is the Golden Rule?
When assessing capacity, two of Lord Templeman’s High Court judgments introduced the so-called “Golden Rule”.
These were Kenward v Adams  and Re Simpson, Schaniel v Simpson  when Templeman J (as he then was) 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, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken; the making of a Will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and finding.
“…If proper precautions are not taken injustice may result or be imagined, and great expense and misery may be unnecessarily caused…”
As the litigation over Lord Templeman’s own Will led to great expense and misery, why did it happen?
Could this litigation have been avoided if the Golden Rule had been applied?
In short the answer is probably yes.
There are various grounds on which the validity of a Will can be disputed. These grounds are set out in our article, ‘On what grounds can you challenge the validity of a Will?’ . There are also a number of claims an individual can forward to dispute the provision they are or are not receiving from an estate irrespective of whether there is a Will.