This article provides an overview of the facts and decision in Goss-Custard & Anor v Templeman & Ors [2020] EWHC 632 (Ch), a leading authority on the assessment of testamentary capacity, particularly where the testator exhibited symptoms of cognitive decline. The case also examines the status of the Golden Rule and the requirements of Banks v Goodfellow test.
Background
A valid will under English law requires the testator to possess testamentary capacity, as set out in Banks v Goodfellow (1870). The Golden Rule, expressed in the case of Kenward v Adams (1975), further recommends that wills for elderly or seriously ill testators be witnessed or approved by a qualified medical practitioner, but this is not a strict legal requirement.
Facts of Goss-Custard v Templeman
Lord Templeman was a highly distinguished former Law Lord and was the judge who created the Golden Rule in the case of Kenward v Adams. Lord Templeman married Sheila in 1996. He had two sons, Michael and Peter. Sheila had a son and two stepdaughters, Jane Goss-Custard and Sarah Edworthy. Upon Sheila’s death in 2008, Lord Templeman inherited Mellowstone from Sheila.
In August 2008, Lord Templeman executed a new will leaving Mellowstone to his stepdaughters, Jane and Sarah, with the remainder of his estate passing to his sons. This new will diverged from earlier arrangements, which had provided gifts to grandchildren and the residue to his sons. Notably, the 2008 will was executed without a contemporaneous medical assessment of capacity.
At the material time, Lord Templeman was showing short-term memory challenges, suggestive of mild or early dementia, although he was not formally diagnosed or treated for this condition.
Following Lord Templeman’s death in 2014, his son and daughter-in-law argued that the 2008 will was invalid due to lack of testamentary capacity. The failure of Lord Templeman to request that his own Golden Rule be followed was one of the grounds on which they relied upon.
Issue Before the Court
The central questions for the High Court were:
- Whether Lord Templeman had sufficient testamentary capacity in August 2008, applying the test in Banks v Goodfellow.
- Whether he was influenced by any “illusory belief” so as to amount to a delusion undermining capacity.
- The impact of failure to comply with the “Golden Rule” on the validity of the 2008 will.
The Decision in Goss-Custard v Templeman
Fancourt J gave detailed consideration to each point:
Testamentary Capacity
The Court found Lord Templeman had testamentary capacity. While he suffered from some short-term memory impairment, there was no evidence of significant impairment of mental functioning. He was aware of the extent of his property, those who might have moral claims on his estate, and the effect of the will he executed.
Crucially, the Court emphasised that testamentary capacity does not require perfect memory or the ability to recall every detail. The actions of Lord Templeman, including consideration of his earlier wills and the rational structure of his 2008 will, demonstrated that he was able to make decisions between competing claims.
Delusion or Illusory Belief
The Court rejected the argument that Lord Templeman was acting under any significant mistaken belief amounting to a “delusion.” If there were any mistakes, they were the product of imperfect memory, not insane delusion.
Compliance with the “Golden Rule”
While Fancourt J reiterated that the “Golden Rule” remains good practice, especially for elderly testators, non-compliance does not invalidate a will. The Court held that the absence of medical involvement at execution did not affect the validity of the instrument where there was otherwise sufficient evidence of capacity.
Context
The judgment also took account of the emotional context, noting the close relationship between Lord Templeman and his stepdaughters, and the rationality of leaving Sheila’s former property to her family. Lifetime gifts to his sons and grandchildren supported the structure and fairness of the arrangements.
Conclusion
Goss-Custard v reaffirms clarifies that mild cognitive decline or imperfect memory does not, in itself, negate capacity where the testator demonstrates understanding of their assets, beneficiaries, and the effect of their decisions. It also underscores that the Golden Rule, while strongly recommended as best practice for vulnerable testators, is not a legal requirement and non-compliance does not invalidate a will.
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