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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Goss-Custard & Anor v Templeman & Ors [2020] EWHC 632 (Ch) (19 March 2020) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2020/632.html Cite as: [2020] EWHC 632 (Ch) |
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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
7 Rolls Buildings Fetter Lane, London EC4A 1NL |
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B e f o r e :
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(1) JANE GOSS-CUSTARD (2) SARAH EDWORTHY |
Claimants |
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- and |
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(1) LESLEY TEMPLEMAN (2) MICHAEL RICHARD TEMPLEMAN (3) PETER MORTON TEMPLEMAN (4) TIMOTHY BLASDALE (as executor of Mr Christopher Blasdale, deceased) (5) DAVID TEMPLEMAN (6) GRACE GOSS-CUSTARD (7) GAIL HEDLEY (8) CLARE TEMPLEMAN (9) LAURA TEMPLEMAN (10) DEBORAH BUTTERY (11) RACHEL CLARKE (12) DAVID TEMPLEMAN |
Defendants |
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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
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Crown Copyright ©
Mr Justice Fancourt :
Introduction
Testamentary Capacity: the Law
" 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.
"Mrs Talbot Rice fastens on the words 'shall understand'and elevates that to a rule that actual understanding must be proved in every case of doubtful capacity. But in my judgment that is an over-literal approach to a judicial statement and one which ignores the subsequent words 'shall be able to comprehend and appreciate'. Further, it ignores other statements in the same judgment, such as the approval given at p557 to the words of Lord Kenyon in charging the jury in Greenwood v Greenwood 3 Curt App:
'If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the object of his bounty, then he was competent to make his will.'
See also the similar statements in Stevens v Vancleve 4 Washington at p267 (' was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?') and in Harwood v Baker 4 Moo PC 282 at p291 (' a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others'), those statements being cited with approval by Cockburn CJ at pp568 and 569 respectively. If there is evidence of actual understanding, then that would prove the requisite capacity, but there will often be no such evidence, and the court must then look at all the evidence to see what inferences can properly be drawn as to capacity. Such evidence may relate to the execution of the will but it may also relate to prior or subsequent events. It would be absurd for the law to insist in every case on proof of actual understanding at the time of execution"
"My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property "
In the current case, there is no expert evidence of lack of capacity. The only expert witness, Professor Howard, was called by the Claimants and testified that there was a relatively high degree of probability that Lord Templeman had testamentary capacity in 2008.
The Facts
Findings of fact
"If I survive my wife and inherit her property Mellowstone I Give the sum of £120,000 free of Inheritance Tax to the Trustees of her Will to be held upon the trusts declared by her concerning her residuary estate and I give the sum of £20,000 free of Inheritance Tax to each of my six grandchildren."
He then left £5,000 to each of Leslie Woods, Ann Chave (later Woods) and Sylvia Woodgate.
"Sheila is anxious for me to be free to live at Mellowstone if I survive her or to sell and spend the proceeds. She values Mellowstone at £400,000 which will incur Inheritance Tax of £160,000 on her death if she survives me, leaving £240,000. She divides this between my grandchildren at £20,000 each making £120,000 in all and £120,000 to her residue which should be something like a million or £800,000. She does not require me to make any particular disposition of Mellowstone or its proceeds of sale if I survive her but by my codicil I have restored the £20,000 for each of my grandchildren and have restored the £120,000 for Sheila's residue whether or not I retain Mellowstone or any of its proceeds when I die. Sheila has made ample provision for the Edworthy, and Hughes families and I have made ample provision for my family."
"Any suggestion or inference from your letters or acknowledgment that my Will might not faithfully carry out my intentions or that I might wish to fetter Sydney's power, if he survives me, to dispose of Mellowstone as he thinks fit is quite wrong and hurtful to us both. Please repudiate any such suggestion or inference."
"We have been having a wonderful time with Sydney he has been great company for my Mum and they chatter away all day long between short periods of drifting off!! He has been eating and sleeping well and is brown as a berry from sitting in the garden
Over the weekend he started to talk of going home and yesterday he and I booked him a return flight It seems a bit short notice but he wanted to go once he had made up his mind. He is talking about booking his driver but as yet has not done that."
An email of the same day to Michael said "he seems very well and is certainly eating and sleeping well. A bit forgetful but aren't we all!!"
"DM discussing with Lord Templeman the Will DM had drafted.
He felt it only right that Jane and Sarah should benefit from Mellowstone as it was their home.
He wants to ensure that his own assets then are shared between his children with gifts over to widows and then children as appropriate.
The contents of Mellowstone should go to Sarah and Jane as they are very much in the main the property of Shelia [sic] accumulated over the years.
He would like DM to provide an additional copy of the draft Will and then arrange for the engrossment and execution of the Will shortly.
His thinking and logic about the Estate seemed faultless. He makes reference to this because at times it seems as though his short-term memory was not as good as it had been when they had last met. DM wondered whether seeing him later on in the day and whether he was more tired might be the reason.
Time involved 30 minutes"
The note clearly indicates that, despite Lord Templeman having previously given his instructions and Mr Merrick having drafted a will, they discussed its content and the reasons for the gifts. There is no reference in the attendance note to a discussion of the 2001 will and 2004 codicil. It also appears that Lord Templeman requested that a further copy of the draft will be sent to him.
"It's hardly my place to mention it, but you asked what the Mercedes was worth because you wanted to give Peter a cheque for the same value as the Mercedes so as to be equally generous to him. I thought a dealer would probably give £10,000 for it. I mention this in case, after your week away you got back to Mellowstone and couldn't remember precisely how much you had intended to give Peter. Since he recently bought an Astra for about £7000 you would in effect be providing him with a car and a balancing lump sum."
Michael was clearly being tactful (as well as honourable) about his belief that Lord Templeman might have forgotten about the compensating payment, but the fact that the concern to make such a payment originated from Lord Templeman is also of interest. It shows his being aware of what he was doing and the implications of his gifting the car to Michael, and his concern to make an equal gift to someone equally deserving of his generosity.
"I always put them somewhere prominent so that his eye catches them. This is because he not only forgets the content of the papers but also that these aide-memoirs exist! By his bed is a good idea, as he often wakes up early and worries, and there is a chance he'll catch sight of them if he turns his light on. It gives him such relief to be told after a long worry that his tax has been dealt with. By the way, he owes the IR nothing at the moment: all is in order on the tax front.
Please could you make sure that, when you return him to Mellowstone, that he brings these four bits of paper with him and that he returns them to the dining room table, with the 'Reminder' sheet uppermost! It seems to work, happily."
This portrays very clearly the state of Lord Templeman's mind in December 2011, by now over 3 years after the date of the 2008 will. He had anxieties about payment of tax in particular and his finances generally that could not be allayed from his memory, because he could not remember having paid his bills; but the anxieties could be allayed by reading a document summarising his financial position. As long as he did not have to remember what he had previously been liable to pay and what he had paid, he could understand his financial position by reading documents that summarised it. His anxiety stemmed from his inability to recall recent events.
Evaluative factual conclusions
The position in law if Lord Templeman had forgotten his former will and codicil
i) First, although three separate criteria are described, they are all aspects of a single test of capacity to make a will, not of knowledge. In Stevens v Vancleve (4 Washington at p.267), an American case followed by the Court of Queen's Bench in Banks v Goodfellow, the test is posited as follows:
"The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time that he executed his will?"
No distinction is drawn there between the different matters that the testator must be capable of recollecting: one of them is the objects of his bounty and another is the property that he is disposing of. In Cattermole v Prisk [2006] 1 FLR 693, Judge Norris QC considered that the words cited from Stevens v Vancleve warn the probate judge against treating deficiencies of memory as the equivalent of incapacity, while underlining the role that memory has to play in deliberately forming an intelligent purpose of disposing of property in a particular way. More recent Court of Appeal authorities to which I have already referred have further underlined that testamentary capacity is not a test of memory.
ii) Second, other authorities do not draw a distinction. In Hawes v Burgess, Mummery LJ said at [55]:
" the deceased knew she was making a new will and knew the extent of the property available for disposal. It is reasonable to expect that a testatrix, who is capable of understanding that much, would normally be capable of understanding the claims arising to which she ought to give effect in her family situation."
In Harwood v Baker (1840) 3 Moo P.C. 282, cited in Banks, Erskine J delivered the opinion of the Privy Council in a case where a testator had excluded his family and left all his property to his second wife:
" in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have the capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property "
In Greenwood v Greenwood (1776) 3 Curt App xxx, Lord Kenyon addressed the jury in the following terms:
"I take it a mind and memory competent to dispose of property, when it is a little explained, perhaps may stand thus: - having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wished to dispose of it. If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will."
iii) The case of Hoff v Atherton does not stand contrary to such authority. When faced with an argument that actual understanding had to be proved, Peter Gibson LJ drew attention to the words of Banks v Goodfellow "shall be able to comprehend and appreciate", which follow the use of the words "shall understand". He did so to emphasise that the latter words are not positing a test of actual understanding but one of capacity to understand. The point being made would be unsound if the former words required actual understanding. If Chadwick LJ, by referring to what the testatrix had been capable of understanding and her ability to comprehend and appreciate the claims on her bounty, had been drawing a distinction between the requirements of the first two criteria and the third, he would undoubtedly have done so in clear language. On the contrary, what is said in para [60] of his judgment is all governed by its first sentence: "The judge was satisfied that Mrs Krol was capable of understanding what she was doing without the need for further explanation."
iv) Fourth, if there were a distinction, the test of capacity would, at least in part, be a test of the memory of the testator. It would be a test of the testator's memory of circumstances relating to the individual affairs of those with claims on him and possibly of others (such as Sheila, on the facts of this case), who may already have conferred benefits which would have to be first remembered and then evaluated to enable a testator to choose justly between them. That would be directly contrary to the judgment of Lewison LJ in Simon v Byford.
v) Fifth, the modern reformulation of the Banks v Goodfellow test uses the word "understand" for all three criteria without distinction, which must in the light of previous authority have been understood as referring to capacity to understand, not actual knowledge.
"Ms Reed disclaimed any reliance on equating testamentary capacity with an ability to remember the terms of and reasons for the dispositions in the previous will. But she said that Mrs Simon was incapable of going through the thought processes that had led her to leave the Westcliff flat and the shares to Robert. However, in order to go through those thought processes, Mrs Simon would have had to have remembered the reasons for those dispositions; so in my judgment her submission does amount to a requirement of actual memory. I do not consider that the judge made any error in his evaluation of requirement (c)."
"The question again is not whether the will was avoided by a mistake of fact. Mere mistakes of fact as to previous persons or property would not stand in the way of probate. Even in the jurisdiction of the Court in equity mistakes of fact can only be depended on to a limited extent as ground for rectification or modification of acts intentionally and definitely done. The crucial subjects of inquiry in the case are these. Did Mrs Belliss make her will of 1927 revoking her will of 1922 under a supposition that the re-apportionment made by the later will was required to restore equality, and was this supposition an insane delusion upon which her testamentary action of 1927 proceeded or an illusory belief of such a character as must be held to displace the prima facie proof of testamentary capacity?"
"Looking at the facts as a whole, it appears to me to be clear that in the summer of 1927 there sprang up in Mrs Belliss' mind an entirely illusory belief to the effect of the statement she made to the woman witness, and that this illusory belief supplied the main motive for her decision to call in Mr Gocher and with his help to make the new will. Further, I am satisfied that her memory had so failed by this time that she could no longer call to mind the facts of her past relations towards her daughters so as to displace illusory notions and beliefs. I must find, then, that Mrs Belliss had not in or after July 1927, the sound memory which in testamentary matters is essential to a disposing mind and understanding."