Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Hazel-Ann Hannaway
Hazel-Ann Hannaway
  • Hazel-Ann Hannaway

  • Partner
  • British Virgin Islands
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • British Virgin Islands
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands

UK Law Lord’s will creates disharmony

In a recent decision of the High Court of Justice of England and Wales (Goss-Custard & anr v Templeman & ors), a will made by the eminent Law Lord, the late Lord Templeman, in 2008 was challenged by D1 and D2 (his son and the son’s wife who was the sole executrix of the 2008 will) on the basis that he lacked testamentary capacity when he gave instructions and when the will was executed, so that it was invalid.

D1 and D2 sought an order that the court pronounce against the 2008 will, in favour of an earlier will, by way of summary judgment. Master Shuman declined to grant summary judgment on the basis that the case raised triable issues.

In considering the written evidence (4 witness statements on behalf of D1 and D2 and 7 witness statements and an expert report on behalf of the claimants), Master Shuman was satisfied that this case was not appropriate for summary judgment in stating that “[t]here is a fundamental issue between the parties about the state of the deceased’s mental health in 2008.”

Accordingly, the claim will proceed to trial with the key issue being whether Lord Templeman had the requisite testamentary capacity to make the 2008 will. The test of testamentary capacity as set out in the leading decision of Banks v Goodfellow (1869-70) will once again be applied to the facts of this case.

The case is a good reminder that capacity is usually not a black and white issue capable of determination by summary judgment and it is generally advisable to follow the ‘golden rule’ as stated in Key v Key The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings…” Whilst the golden rule is not itself a touchstone of validity, its purpose is to avoid disputes or at least to minimise their scope.

Lawyers do not always follow good advice, sometimes even their own: it is said that Jardine, author of a leading text book on wills, which emphasised the importance of making wills, died intestate.

Analysing the UK Law Lord's

Leave A Comment