• 29 April 2020 Short-term memory loss and testamentary capacity: the Judgment in Goss-Custard v Templeman by Tristan Tydings

    Lord Templeman, when he was a high court judge, famously articulated the ‘golden rule’ in Kenward v Adams [1975] CLY 3591 that aged or seriously ill testators ought to have their wills approved or witnessed by medical practitioners. Ironically he did not follow his own counsel when, aged 88, he executed his last will, witnessed by his solicitor and another employee of his solicitor’s firm. Following his death in 2014, his estate was the subject of a dispute regarding his testamentary capacity, in which the argument turned on the extent to which short-term memory loss affects one’s capacity to make a will. It seems that there was no medical practitioner available to attest to his capacity – as practitioners will know is often the case. A consultant old age psychiatrist was called to give expert opinion evidence on the issue, based on Lord Templeman’s medical records, although he never examined Lord Templeman in person. Nonetheless, he concluded that it was highly likely Lord Templeman did have testamentary capacity in 2008 when he executed his will.

    The Judgment handed down in Goss-Custard v Templeman [2020] EWHC 632 (Ch) on 19 March 2020 provides helpful guidance.


    Lord Templeman had two children from his first marriage, Michael and Peter. His second wife, Sheila, had a son, Bruce, from her first marriage, and two step-daughters, Sarah and Jane from her second marriage. Lord Templeman was Sheila’s third husband.

    When Lord Templeman and Sheila married, they lived together in Sheila’s house, known as ‘Mellowstone’. Sheila had designed and built Mellowstone with Sarah and Jane’s father in the 1970s.

    Bruce died in 2004 and left his property ‘Rock Bottom’ to Sheila, who executed a deed of variation so the property passed to Jane and Sarah.

    Lord Templeman’s 2001 will and 2004 codicil provided that if he survived Sheila and inherited Mellowstone, on his own death, each of Lord Templeman’s six grandchildren, i.e. the children of Michael and Peter, would receive £20,000 free of tax, and £120,000 free of tax would be left to be divided between Sheila’s 5 residuary beneficiaries, including Jane and Sarah. This amounted to the estimated value of Mellowstone (at that time) i.e. £400,000 minus the inheritance tax that would have applied if the property passed to them (estimated to be £160,000). Sheila’s will made identical provision for Lord Templeman’s grandchildren if she were to survive him. Either Sheila or Lord Templeman, as survivor, were otherwise allowed to do as they pleased with the property itself.

    Sheila died in June 2008 and left Mellowstone to Lord Templeman.

    Two months later, Lord Templeman made a new will which left a few modest legacies to his housekeeper and gardener, Mellowstone to Sarah and Jane, and the residue of his estate to his sons, Michael and Peter equally. He left no legacies to his grandchildren, or to Sheila’s residuary beneficiaries.

    In May 2009, Lord Templeman made gifts of £100,000 to each of his sons and £20,000 to each of his six grandchildren. The £20,000 gifts were equivalent to what would have been left to them under the 2004 codicil.

    The dispute

    Lord Templeman died in 2014. Mellowstone had increased in value to £580,000.

    Under the 2001 will and 2004 codicil, the greater value of Mellowstone would have fallen into the residue of the estate, passing to Michael and Peter. £120,000 would have been distributed equally amongst Michael and Peter’s children, and another £120,000 would have passed to Sheila’s residuary beneficiaries (with Sarah and Jane receiving about £18,000 each). Instead, the 2008 will provided that Mellowstone was to pass solely to Sarah and Jane, thus reducing Michael and Peter’s share of the estate.

    Michael’s wife, Lesley, was appointed as the executor, but she refused to administer Lord Templeman’s estate in accordance with the 2008 will, claiming that he lacked testamentary capacity when he made the will.

    Her argument was two-fold:

    1. Lord Templeman must not have been able to recall the terms of his 2001 will and 2004 codicil when he made his 2008 will, otherwise he would have remembered the arrangement made with Sheila regarding Mellowstone, and would have known that Jane and Sarah had already received a property from Sheila. Therefore, Lord Templeman could not sufficiently comprehend or appreciate the nature and extent of the claims on his estate i.e. that Jane and Sarah did not have a legitimate and substantial claim for provision under his will; and

    2. Lord Templeman’s mind was prejudiced by an illusory belief that a wrong had been done to Jane and Sarah that he needed to put right i.e. that Mellowstone was a family property that should pass to Jane and Sarah and his will had not made such provision. The belief he needed to put this right was illusory because, even when Sheila was alive, it was never envisaged that the property would pass to Jane and Sarah. Therefore, Lord Templeman lacked just appreciation of those claims which caused him to make a disposition he otherwise would not have made.

    Much evidence was adduced at trial of Lord Templeman’s short-term memory.


    The Judge found on the facts that Lord Templeman’s mental functioning was not impaired and he was aware of his 2001 will and 2004 codicil when he executed his last will in 2008. He rejected the argument that Lord Templeman had forgotten his codicil, or that he was suffering from an illusory belief. Lord Templeman was able to comprehend and appreciate those who had a call on his estate and had capacity when he made his 2008 will.

    Despite finding on the facts that Lord Templeman had not forgotten his previous testamentary dispositions, the judge did go on to discuss what he would have found had Lord Templeman forgotten his former will and codicil. Would this lapse in memory have negated testamentary capacity? Although obiter, the Judgment gives some useful guidance, as follows:

    1. A testator does not need to have actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential beneficiary.

    2. A testator has to have the capacity to decide himself between competing claims but does not have to have all of the facts.

    3. The test is about capacity to make a will, it is not a test of knowledge or memory.

    4. A testator does not have to be able to justify a difference between a previous and new will.

    5. Forgetting a previous will or the circumstances of a potential beneficiary falls short of the kind of delusion needed to negate testamentary capacity.

    6. An “illusory belief” is not synonymous with a “mistaken belief” but is instead a fixed belief similar to an insane delusion which the testator does not have the mental powers to overcome.

    The comments seem very much in line with the settled approach towards questions of capacity, which is that capacity is usually to be presumed and the onus is on the person alleging a lack of capacity to prove, on the balance of probabilities, its absence. A testator who has capacity, and who has full knowledge and approval of the contents of his or her will, and is free from undue influence, is free to make decisions that to many might appear unwise or unfair. The freedom of testamentary disposition remains an important concept in English law.

    If you are considering challenging a will, need advice on a deceased testator’s capacity, or are defending an estate against a challenge, we can advise you. Please enquire with our Litigation team on +44 (0)20 7242 9700 or

    This is a general summary and should not replace legal advice tailored to your particular circumstances.

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