Pump Court Chambers

Capacity: Where now for the ‘Golden Rule’?

Blog 14th June 2020

You could not make it up! Lord Templeman, the creator of the Golden Rule in his decision in Kenward v Adams(1975) The Times 29 Nov, died in 2014. He executed his last will in August 2008. He left nothing to his son Michael Templeman or his daughter in law Lesley Templeman and they challenged the validity of his will on the basis that he lacked testamentary capacity. The outcome of that challenge, the decision of Fancourt J, is now reported as In Re the Estate of the Right Honourable Sydney William, Baron Templeman of White Lackington (Deceased) [2020] EWHC 632 (Ch).

Lord Templeman was 88 when he executed the 2008 will. His wife Sheila had died two months earlier. It was common ground that he started to experience difficulty with his short-term recall memory in 2006 and that it gradually deteriorated over the remaining 8 years of his life. Expert evidence adduced at trial from Professor Howard, Professor of Old Age Psychiatry at University College London, attributed his memory loss to early symptoms of dementia attributable to incipient Alzheimer’s disease. And yet, David Merrick, the Solicitor who prepared Lord Templeman’s will did not ensure that his capacity was confirmed by a medical practitioner.

Lord Templeman had expressed his ‘Golden Rule’ in the following way,

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

Although Peter Gibson LJ in Hoff v Atherton [2004] EWCA Civ 1554, [2005] WTLR 99 had observed that the case was “too briefly reported to be of much assistance” and “does not purport to lay down the law”, he nonetheless observed that the comments contain “prudent guidance for solicitors”.

In Re Key (Deceased) [2010] EWHC 408 (Ch) [2010] 1 WLR 2020, Briggs J put it in the following terms:

“Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least the minimisation of their scope.”

Lord Templeman was clearly in the category of testator that he himself had identified as requiring the input of a medical practitioner to assess and confirm capacity. So why did such an assessment not happen?

As Fancourt J identified, there was no doubt that Lord Templeman had retained the capacity to capture and use information, to converse and be witty and engaging. Mr Merrick should have suggested to Lord Templeman that he be assessed by a medical practitioner, but he clearly hesitated to do so. Such a suggestion may not have been well received! No doubt this is what Lord Templeman himself had in mind when he recognised that such precautions may be “difficult” or even “tactless”.

Fancourt J was quite forgiving of Mr Merrick in his judgment saying:

“Given Lord Templeman’s reputation, his evident intellectual resources even at that age and the perfectly rational terms of the new will on the face of it, I do not find it surprising (the Golden Rule notwithstanding) that Mr Merrick decided not to enquire further or suggest that Lord Templeman be medically assessed…”

So why did Lord Templeman not himself suggest such an assessment? Surely he would have realised the risk of challenge to his will in the event that no such assessment took place? Indeed, his son relied upon the fact that Lord Templeman did not apparently raise the question of a medical assessment as evidence itself of a lack of testamentary capacity, on the basis that his father of all people would have raised it if he had a functional memory at the time.

Fancourt J dismissed that argument for the following reasons:

“I do not accept that argument. The evidence establishes that Lord Templeman was well able to remember events from earlier in his life and would have remembered his landmark judicial decisions, including the Golden Rule cases. In my judgment, the assumed failure to suggest a medical examination is probably evidence of the commonplace that people who are dispassionately to give good advice to others do not always follow such advice themselves, or believe themselves to be in need of it. It would, in any event, not necessarily be easy for an elderly but knowledgeable testator to admit openly to being of doubtful testamentary capacity.”

It is probably right to suggest that the importance of the ‘Golden Rule’ has diminished over time. Less perhaps a rule than a piece of prudent guidance, designed to protect solicitors from being dragged into probate litigation. As Lord Templeman’s case demonstrates, a failure to follow the ‘rule’ in no way implies that a challenge on the basis of lack of testamentary capacity will be successful. Each case will inevitably turn on its own facts and the evidential matrix presented to the court.

This article Capacity: Where now for the ‘Golden Rule’? was written by Leslie Samuels QC. To enquire about instructing Leslie or another member of our Inheritance, Wills & Probate Team, please contact our clerking team.

To view a recording of our webinar ‘All that Glitters is not Golden’ recorded on Wednesday 10th June 2020, please click on the video below.

 

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