Summary judgment in probate cases: Goss-Custard and Another v Templeman and Others [2018] EWHC 2476 (Ch)

The recent case of Goss-Custard and Another v Templeman and Others [2018] EWHC 2476 (Ch) offers a rare example of an attempt to obtain summary judgment against the validity of a will on the grounds of lack of testamentary capacity. Practitioners familiar with probate disputes, and particularly disputes regarding testamentary capacity, will be aware of how fact-sensitive disputes of this nature are. It is all but inevitable in such cases that different individuals (including professionals involved in the making of a will and professionals involved in the testator’s medical care) will have differing experiences and recollections of the capacity of the Deceased. Moreover, as capacity is time specific, testamentary capacity can fluctuate from time to time. The position is complicated further by the rule in Parker v Felgate (1883) 8 P.D. 171, the operation of which can mean that the testator need not even have had full testamentary capacity at the date of execution. A modern illustration of this old rule can be seen in Perrins v Holland [2010] EWCA Civ 840, where the Court of Appeal refused to overturn the rule.