Jane Goss-Custard v Lesley Templeman
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt |
| Judgment Date | 19 March 2020 |
| Neutral Citation | [2020] EWHC 632 (Ch) |
| Date | 19 March 2020 |
| Docket Number | Case No: HC-2017-001771 |
| Court | Chancery Division |
[2020] EWHC 632 (Ch)
THE HONOURABLE Mr Justice Fancourt
Case No: HC-2017-001771
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS & PROBATE LIST (ChD)
In the estate of THE RIGHT HONOURABLE SYDNEY WILLIAM, BARON
TEMPLEMAN OF WHITE LACKINGTON, deceased
Rolls Building
7 Rolls Buildings
Fetter Lane, London
EC4A 1NL
Alexander Learmonth (instructed by Foot Anstey LLP) for the Claimants
The Second Defendant in person and for the First Defendant
No attendance by or representation for the Third to Twelfth Defendants
Hearing dates: 20–24, 27, 28 January 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fancourt
Introduction
This trial concerned the validity of the last will of Lord Templeman. The only issue is whether Lord Templeman had testamentary capacity when he executed the will before a solicitor and another witness in August 2008. This was a little under 6 years before his death in June 2014. The Claimants propound the 2008 will and the First and Second Defendants, the younger son and daughter-in-law of Lord Templeman, contend that it is invalid. None of the other Defendants challenges the validity of the 2008 will.
The effect of invalidity of the 2008 will would be that Lord Templeman's final will was one that he made in 2001, subject to a codicil of 2004. The principal difference in their effect relates to the house in which Lord Templeman had lived from the time of his second marriage, to Sheila Edworthy in 1996, until his death in 2014: Mellowstone, in Exeter.
In this judgment, for convenience, I shall refer to each of the family members involved in the events by their first names, with no disrespect intended to any of them. I shall refer to Lord Templeman by that name. The Defendants represented themselves at the trial, with the Second Defendant, Michael Templeman, performing the role of advocate on behalf of them both. I shall refer to him in that capacity as Mr Templeman. The Claimants were represented by Alexander Learmonth of Counsel.
Under the 2001 will and 2004 codicil, in the event that Sheila predeceased him and left Mellowstone to him under her will, Lord Templeman left £20,000 free of tax to each of his six grandchildren and £120,000 free of tax to Sheila's residuary beneficiaries. Any greater value of Mellowstone would fall into his own residuary estate, which was to be shared by his two sons, Peter and Michael.
Sheila died in June 2008, two months before the 2008 will was made, and Mellowstone was left to Lord Templeman by her last will.
By the 2008 will, Lord Templeman left Mellowstone to the stepdaughters of Sheila, Jane Goss-Custard and Sarah Edworthy. He left no legacies to his grandchildren or to Sheila's residuary beneficiaries and, after some modest gifts, the entire residue of his estate was left to Peter and Michael in equal shares.
The First and Second Defendants (hereafter “the Defendants”) contend that there was, is and can be no rational explanation for the change that Lord Templeman made in his 2008 will as regards Mellowstone. They say that the explanation that he is recorded as having given to his solicitor, David Merrick, namely that the house really belonged to Sheila's family and should be left to them, was irrational and so was no good explanation at all.
It was irrational, they say, because the explanation given was equally the case in 2004, when Lord Templeman and Sheila made testamentary arrangements that did not leave Mellowstone to Sheila's family after the death of the survivor of them. Nothing had changed in that regard by 2008. Accordingly, it should be inferred that Lord Templeman had forgotten the arrangements made in 2004 and was acting under an illusory belief that he had not provided in his will for the eventuality that he inherited Mellowstone from Sheila. That illusory belief provided a false premise for the 2008 will, namely that in fairness Mellowstone should be left to Jane and Sarah. By reason of that illusory belief, the argument proceeds, Lord Templeman did not sufficiently appreciate the relative nature and extent of the calls upon his bounty from his own family (sons and grandchildren) and from Sheila's family, and so he lacked testamentary capacity.
It is not in dispute that the 2008 will was rational on its face and duly executed; that Lord Templeman sufficiently understood the act of making a will and its effect, and sufficiently understood the extent of the property of which he was disposing. It is not in dispute that he knew and approved of the contents of the will. The basis of challenge to the validity of the will is therefore a narrow one.
It is common ground that Lord Templeman started to experience difficulty with his episodic (short-term recall) memory in 2006 and that it gradually deteriorated over the remaining 8 years of his life. Expert evidence now attributes this to early symptoms of dementia attributable to incipient Alzheimer's disease, though in fact Lord Templeman was never diagnosed with or treated for this disease during his lifetime. Apart from a short stay in hospital in early 2014, he continued to live in Mellowstone for the rest of his life, supported to an increasing extent by Jane and her husband, John, by Sarah and her partner Mike, and by professional nursing support only in 2014. It is equally common ground that Lord Templeman's working memory gave him no difficulty. He was able to capture and use information, converse and be witty and observant, however he would commonly forget what had been said earlier in a conversation or repeat himself.
There is therefore a broad question of fact about how serious the problem with Lord Templeman's episodic memory had become by August 2008. There is, more particularly, the question of whether Lord Templeman remembered, or had reacquainted himself with or was made aware of, the terms of his 2001 will and 2004 codicil when he made his 2008 will. If he was not aware of those documents and was indeed, as the Defendants submit, acting in the mistaken (or illusory) belief that he had not already provided for what was to happen to Mellowstone under his will, there is then a question of law as to whether such a mistaken (or illusory) belief negates testamentary capacity, on the basis that Lord Templeman did not sufficiently comprehend and appreciate the characteristics of his potential beneficiaries. It is convenient to deal first with the law relating to testamentary capacity in general terms.
Testamentary Capacity: the Law
It is agreed that the law relating to testamentary capacity is as set out by the Court of Queen's Bench in the case of Banks v Goodfellow (1869) LR 5 QB 549, as cited (with sub-paragraphing added) by the Court of Appeal in Sharp v Adam [2006] EWCA Civ 449. The requirements are:
“…that a testator '[a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
In Burns v Burns [2016] EWCA Civ 37, the trial judge had paraphrased this formulation in more modern language, as follows:
“[33] … the testator must:
(a) Understand that he is giving his property to one or more objects of his regard;
(b) Understand and recollect the extent of his property;
(c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will;
(d) Ensure that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if the mind had been sound, would not have been made.”
McCombe LJ in the Court of Appeal approved the paraphrase as accurately representing the law, though the Court of Appeal in Sharp v Adam had concluded that no reformulation of the language of Banks v Goodfellow was needed. I therefore approach the matter on the basis that the modern formulation is to the same effect as the original language and does not substitute any different test.
It is important to note that where, in the Banks v Goodfellow formulation, reference is made to the “understanding” or “comprehension” of the testator, that is not a reference to what they actually remember but rather a requirement that they have the capacity to understand and comprehend such matters: “capacity depends on the potential to understand. It is not to be equated with a test of memory….” ( Simon v Byford [2014] EWCA Civ 280, at [40–42], per Lewison LJ).
That conclusion was reached following an earlier decision of the Court of Appeal, Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99, which was concerned with the testamentary capacity of a testatrix and whether she knew and approved the contents of her will. Peter Gibson LJ said that testamentary capacity must not be conflated with knowledge and approval of the will and, at...
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