17th April, 2020
Goss-Custard v Templeman (2020) EWHC 636 (Ch)
In a recently reported High Court decision in the case of Goss-Custard v Templeman (2020) EWHC 636 (Ch) the son of renowned law lord and former High Court Judge, Lord Sydney Templeman, was unsuccessful in his challenge to the Will of his late father on the grounds of lack of testamentary capacity.
Lord Templeman died in 2014, leaving his last Will executed in 2008, which left his marital home, Mellowstone, to his two stepdaughters by marriage, Jane and Sarah, and his residuary estate equally between his two sons, Michael and Peter.
Michael Templeman brought a challenge to the 2008 Will on the basis that his late father lacked testamentary capacity due to the fact that he had dementia at the time his last Will was executed and that he did not seem to have considered the terms of his previous Will. The previous Will was made in 2001 and left Jane and Sarah legacies of £18,000 each and the remainder of the estate, including Mellowstone, to Michael and Peter equally.
Mellowstone had originally been built by Lord Templeman’s late wife, Sheila, along with her previous husband. Jane and Sarah were the children of Sheila’s previous husband, however she had a close relationship with them which was maintained after their father had died and she had remarried Lord Templeman. Sheila had one son of her own, Bruce, who passed away before Sheila, leaving her a property which Sheila passed by Deed of Variation to Jane and Sarah. Once Sheila passed away, Jane and Sarah continued to have a close relationship with Lord Templeman and he treated them as his own daughters.
Michael’s assertion that a lack of consideration of previous Wills was evidence of his father’s lack of testamentary capacity was dismissed by the court as the legal test for capacity does not require knowledge of the contents of previous Wills but rather requires the testator to have an awareness of ‘the calls on his bounty’.
In any event, the court found that it was likely Lord Templeman had considered his previous Will as it was easily accessible in his study and his solicitor’s file note made reference to funeral wishes which were contained in a Letter of Wishes which accompanied his previous Will.
A particularly coincidental aspect of this case is that Lord Templeman’s solicitor had not followed the Golden Rule which he himself had set out in his judgement in Kenward v Adams  CLY 3591. The golden rule states that if a testator is elderly or seriously ill, a medical practitioner should act as a witness to the Will or should be asked to certify that a testator has capacity before the Will is signed.
No such precaution was taken in the case, even though Lord Templeman was elderly and had been diagnosed with dementia when he executed his last Will.
Whilst the challenge to the Will was ultimately unsuccessful, the financial and emotional burden Will challenges can take on all parties, whether unsuccessful or successful, should be considered when making a Will, so that steps can be taken to avoid such proceedings after your death.
This is particularly important where family circumstances are more complex, for example where there is a second marriage and stepchildren. Whilst it is not possible to guarantee that a Will won’t be challenged, speak to a member of our Wills team if you would like to ensure that all practicable steps are taken to protect your estate.
Wills, Trusts and Tax
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