Validity and counterclaiming for proof of an earlier Will
Goss-Custard v Templeman  EWHC 2476
Lord Templeman is famous for being the law lord who set down the ‘golden rule’ in relation to Will drafting in the case of Re Simpson.
Ironically, there is a dispute over his last Will between the stepchildren of his second wife and his own children based on the premise that he lacked capacity when it was made. The claimants are trying to propound the last Will and the defendants are refuting its validity and counterclaiming for proof of an earlier Will. To complicate matters this is an application for summary judgement as part of the counterclaim.
In Goss-Custard v Templeman  EWHC 2476 Lord Templeman had married twice. The children, Ann and Michael, were from the first marriage to Margaret who died in August 1988. He married Sheila on 12 December 1996 – he was Sheila’s third husband. She had one son who died from her first marriage and acquired two step- daughters from her second marriage.
The disputed Will was made on 22 August 2008 a few months after Sheila died. Previous Wills were made in 2001 and 2003 but the 2001 Will was confirmed as amended by a codicil in 2004 about the time Sheila made her last Will. The 2001 Will as amended left £50,000 and his personal chattels to Sheila and the residue of his estate between Ann and Michael.
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Lord Templeman and Sheila had both made substantial lifetime gifts to their children. In 2004 the key concern was for Sheila to ensure Lord Templeman’s safe occupation of her property Mellowstone where they lived, should she die first. She made a gift to him of the property and out of his estate gifts were made of £20,000 to each of his 6 grandchildren and £120,000 to Sheila’s residuary beneficiaries.
Sheila’s death shocked Lord Templeman and he asked the claimants who then owned Mellowstone and they advised he did. He felt this must be wrong and arranged to make a new Will gifting the property to them.
This Will was prepared by solicitors in Executor who had acted for both Lord Templeman and Sheila for some time.
The defendants argued that by 2006 Lord Templeman’s memory began to deteriorate and that he failed to grasp that Sheila was dying. From the solicitor’s file (he being struck off) it was clear that he had no doubt about Lord Templeman’s capacity to make the 2008 Will. The defendants had to produce credible evidence in support of their application to challenge this Will for lack of capacity before the burden of proving the deceased had capacity passed to the claimants.
The test of testamentary capacity remains Banks v Goodfellow (1870) LR 5 QB 549. In Hawes v Burgess  EWCA 94 Ld Mummery said:
“The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their Will and that what is in the Will truly reflects what they freely wish to be done with their estates on their death”
In Simons v Byford  EWCA 280 The judge upheld the deceased’s last Will made in 2005 even though it was common ground that her mental health had deteriorated since 2001. In the Court of Appeal LJ Lewison said:
“ ….capacity depends on the potential to understand. It is not to be equated with a test of memory…”
He went on to say that
“ I do not believe that previous authority goes to the length of requiring an understanding of the collateral consequences of a disposition as opposed to its immediate consequences. Nor do I think it desirable that the law should go that far…”
The defendants had sought summary judgment. To succeed a court must consider that:
- The claimant has no real prospect of succeeding on the claim or issue; or
- The defendant has no real prospect of successfully defending the claim or issue; and
- There is no other compelling reason why the case of issue should be disposed of at a trial
The hearing of a summary judgment is not a summary trial – only the merits of the case are considered. The evidence of the circumstances around the making of the 2008 Will and Lord Templeman’s lack of cognisance of his 2004 codicil is not ‘game, set & match’ as the defendants claimed but one which requires a full trial to test whether he lacked capacity or not.
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