26 March 2020 | Comment | Article by Richard Adams
Judgment has recently been handed down in Goss-Custard v Templeman (2020) EWHC 636 (Ch), which involved a challenge to the last will of Lord Templeman on the basis that he lacked mental capacity.
Lord Templeman's 2008 will left his last home, “Mellowstone”, to his stepchildren, while his earlier will gave Mellowstone to Lord Templeman’s sons, Michael and Peter.
Lord Templeman was an eminent lawyer and judge, and famous for establishing what has become known as the ‘golden rule’ in the case of Kenward v Adams  CLY 3591; guidelines for those preparing wills for the elderly.
To quote Lord Templeman:
“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 the 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”.
The ironic twist in the present case was that Lord Templeman's own golden rule was not followed! At the time of making the 2008 will, Lord Templeman had begun to experience difficulty with his short-term memory. However, no expert evidence in respect of his capacity or otherwise had been obtained at the time of the making of the Will.
With no expert evidence prepared at the time of making the will, the only evidence before the court was from expert witnesses who concluded that it was highly probable that Lord Templeman retained capacity at the time of the 2008 will.
Based on this, and other evidence before the Court, the will was upheld.
To quote the case of Scammell v Farmer  EWHC 1100 (Ch), “while the ‘golden rule’ is not itself a touchstone of validity”, it does highlight the importance of having a medical professional present at the witnessing of the will, and how that is likely to reduce the scope of the will being challenged on the basis of lack of capacity.
It also shows how, absent that evidence, the evidence of experts is crucial.