Analysis
The late Lord Templeman (‘the deceased’) died on 4 June 2014 aged 94, leaving a will, dated 22 August 2008 (‘the 2008 Will’). The claimants commenced proceedings seeking an order pronouncing for the validity of the 2008 Will in solemn form. The 1st and 2nd defendants defended the claim on the basis that the deceased lacked testamentary capacity both when he gave his will instructions on 11 August 2008 and when the 2008 Will was executed. They counterclaimed for an order pronouncing for the validity of an earlier will, dated 25 April 2001 (‘the 2001 Will’) and a codicil to it, dated 3 December 2004 (‘the 2004 Codicil’). They subsequently applied for an order pronouncing against the validity of the 2008 Will by way of summary judgment.
In 1996 the deceased had married his second wife, Sheila Edworthy (‘Sheila’). The deceased moved into a property, owned by Sheila, in Devon, in which Sheila had lived with her second husband, who was the father of the claimants (‘Mellowstone’). In 2004 Sheila executed a will, and the deceased executed the 2004 Codicil. The effect of these testamentary documents was that Mellowstone was not left to the claimants by either Sheila or the deceased: Sheila left Mellowstone to the deceased if he survived her.
The 1st and 2nd Defendants contended that the deceased’s lack of testamentary capacity in 2008 was made clear by contemporaneous documentary evidence, and was confirmed by paragraphs in the 2nd claimant’s witness statement referring to conversations with the deceased in 2008, in which he asked the 2nd claimant who owned Mellowstone. On being reminded that it was his home, as Sheila had left it to him in her will, he apparently said that this was not right, and that he would see his solicitor to put the matter right, as Mellowstone was the claimants’ family home. By the 2008 Will the Deceased left Mellowstone, subject to inheritance tax, to the claimants. The 1st and 2nd Defendants contended that, in so doing, the deceased held an illusory belief that he was putting right a wrong, whereas there was no wrong to right, as Sheila had left Mellowstone to him absolutely. It was contended that the deceased’s belief was impossible if the deceased had remembered the 2004 testamentary arrangements; indeed, it was ‘game, set and match’ as no one with testamentary capacity could have said what he was alleged to have said.
The claimants admitted that the deceased had mild short-term memory impairment, but denied that it was so severe as to deprive him of testamentary capacity. They relied on expert psychiatric evidence that the deceased probably had adequate testamentary capacity when he made the 2008 Will, even though he was probably then suffering from a mild degree of dementia, caused by Alzheimer’s disease. They also relied on evidence from witnesses as to the deceased’s capacity.
Held:
1) The 1st and 2nd defendants’ case depended on the hypothesis that the deceased had no good reason to make the 2008 Will other than he was operating under an illusory belief that he was putting right a wrong that had never existed. However, the case of the test of capacity was not a test of memory, but of the capacity to understand the consequences of the disposals made by the deceased. It was not necessary to understand the collateral consequences of a disposition as opposed to its immediate consequences.
2) The Judge did not accept the 1st and 2nd defendants’ submission that the 2nd claimant’s evidence was “game, set and match”. He agreed that it raised issues that required investigation and a finding of whether the deceased was possessed of sound disposing mind and memory. This militated firmly in favour of a trial, not a summary disposal.
3) The application for summary judgment was dismissed. The case raised triable issues that required determination at trial after the judge had assessed all of the evidence. There was no inherent improbability in anything that the claimants had asserted, or extraneous evidence that contradicted the claimants’ case. The case presented on behalf of the claimants and the evidence on which they relied was credible on present facts. It was not the task of the court to choose between the facts presented by the 1st and 2nd defendants and those presented by the claimants. The court was, in effect, being asked to conduct a summary trial, which it could not do on a summary judgment application. It was, therefore, not accepted that the claimants had no real prospect of successfully establishing that the deceased had the requisite testamentary capacity to make the 2008 Will.
JUDGMENT MASTER SHUMAN [1] The claimants by claim form issued on 16 June 2017 seek an order pronouncing for a will dated 22 August 2008 (‘the 2008 Will’) of Sydney William Baron Templeman of White Lackington (‘the deceased’) in solemn form. The 1st and 2nd defendants defend the claim on the basis that the deceased …Continue reading "Goss-Custard & anr v Templeman [2018] WTLR 893"