Lord Templeman is a name familiar to many law students, solicitors, barristers, and judges. He was involved in a number of the great decisions at the end of the last century, among them: Street v Mountford, on the difference between a licence to occupy property and a tenancy; Gillick v West Norfolk Area Health Authority, dealing with the right of underage girls to obtain contraceptive advice without parental knowledge; and Attorney General for Hong Kong v Reid, which decided that bribe money accepted by a person in a position of trust can be recovered from any property bought with it.
His name, however, holds particular clout among those working in the field of contested Wills, for it is he who first promulgated what has become known as the ‘golden rule’ of good practice in advice and the preparation of Wills by solicitors. This rule is essentially of evidential good sense, aimed at minimising the number of challenges to the testamentary intentions of elderly or ill persons:
“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”. (Kenward v Adams, 1975)
Lord Templeman retired from the House of Lords (the former name of the Supreme Court) in 1994, at the age of 74. He made a will in 2001 and amended it by codicil in 2004. In 2008, he made his last will, aged 88, when he was probably suffering from mild Alzheimer’s Disease, the symptoms at that stage being an impaired episodic, short-term memory.
His solicitor must be presumed to have known of the golden rule and that Lord Templeman’s name would be forever associated with it. He, presumably, had advised on its application previously, with other clients. Possibly through deference, he did not raise it with Lord Templeman, who likewise did not raise it with him.
Following Lord Templeman’s death in 2014, his son challenged the will, on the grounds of capacity. The case (Goss-Custard v Templeman) will be the subject of my next article but, for current purposes, one of the arguments deployed by his son, Michael Templeman, a retired barrister acting in person, was that, in addition to the failure to comply with the rule per se, the very fact that Lord Templeman did not himself suggest that he be medically examined to confirm his capacity, in accordance with his own rule, evidenced that his capacity had diminished to the extent that he had forgotten having been its creator.
Fancourt J did not accept that:
“In my judgement, the assumed failure to suggest a medical examination is probably evidence of the commonplace that people who are able 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 cannot be inferred that Lord Templeman did not raise it because he had no functioning memory and so no testamentary capacity.”
However, the Judge also said that, while on the facts he was not surprised that the solicitor decided not to suggest that Lord Templeman be medically assessed, the fact of the litigation demonstrated that he should have done.
The case contains what all contentious probate lawyers will regard as a priceless irony. Lord Templeman himself would, doubtless, be dismayed to know that the final case for which he will be remembered is one in which his own son challenged his last wishes, albeit unsuccessfully. Not only this, his son also assumed his failure to comply with a rule of good practice laid down by him nearly 45 years earlier, a rule which has featured in almost all contested capacity probate claims ever since.
Few solicitors will be as embarrassed as the hapless one in this case, but his failure is a lesson to all, regardless of the reputation of the client.
The judgement is available here.