31 March, 2022
The case of Hughes v Pritchard  EWCA Civ 386, considered the important issue of the proper weight to be attached to a will drafter's evidence, and a medical practitioner's assessment of testamentary capacity.
The case concerned Evan Hughes (the Deceased), who died in March 2017, aged 84. The Deceased owned a farming business and at the time of death, owned substantial assets including a large amount of land.
The Deceased executed his final will in July 2016. Under the terms of the will, the Deceased bequeathed a large amount of land to Gareth, his son and executor. However, at the time of making the will, the Deceased was suffering from moderately severe dementia, and in addition, he was grieving for his son, Elfed, who had died a few months previously. It was said that Elfed's death, along with the imminent dissolution of the Deceased's building company, prompted the Deceased to change his will.
When the will was submitted for probate, the Deceased's son, Stephen, and Elfed's widow, Gwen, contested probate arguing that the will was invalid owing to the Deceased's lack of testamentary capacity.
Gareth opposed the family's challenge, contending that the Deceased did have capacity to make the will, not least because the solicitor who drafted the will had made comprehensive attendance notes, and had followed the 'golden rule' by requesting an assessment of the Deceased's capacity from the Deceased's GP, Dr Harri Pritchard, who in turn determined that the Deceased did have capacity to make the will. In addition, a single joint expert report was obtained from Dr Hugh Series, and his opinion to the Court, based upon the Deceased's medical records and the evidence from the drafting solicitor and Dr Pritchard, was that the Deceased had capacity when the will was made.
However, at the trial (Hughes v Pritchard  EWHC 1580 (Ch)), Dr Pritchard stated that he had been misled into believing that 2016 will make only minor changes to a previous will made by the Deceased in 2005, and further, said that the Deceased was of the same view. Several other witnesses supported Dr Pritchard's statement in that regard and accordingly, Jarman HHJ was persuaded that the 2016 will should be set aside and admitted to probate the 2005 will.
Gareth appealed. He argued that Jarman HHJ had erred in his approach to testamentary capacity in that he 'was wrong to ignore the very strong presumption that a will which has been drafted by an experienced independent lawyer should only be set aside on the clearest evidence of lack of mental capacity'. He said that Jarman HHJ misdirected himself in law by concluding that the making of the 2016 will was "a more complex transaction", on the basis that testamentary capacity is relevant to the making of the will, not the precise will being made.
Gareth contended that Jarman HHJ should not have disregarded the evidence of the drafting solicitor and that her evidence, along with that of Dr Pritchard and Dr Series, did not allow a possible finding of lack of testamentary capacity. Gareth also argued that as Jarman HHJ had found that the Deceased had testamentary capacity when he gave instructions for the 2016 will in March 2016, and those instructions did not subsequently change, the correct finding ought to have been that the will was valid.
The EWCA determined that the fundamental issue is that 'testamentary capacity does not require a testator to recall the terms of a past will they have made, or the reasons why it provided as it did, as long as they are capable of accessing the information if needed, and of understanding it once reminded of it'. Crucially, there was no suggestion that in making his 2016 will, the Deceased had forgotten that the disputed land had previously been bequeathed to Elfed by the 2005 will, and that when taken as a whole, there was nothing irrational about the 2016 will.
The EWCA was satisfied and concluded that the nature of all dispositions in the 2016 will were described by Dr Pritchard, and were discussed with the solicitor, and approved by the Deceased. It ruled that Jarman HHJ was wrong to determine that the 2016 will was much more complicated and therefore required greater capacity than the 2005 will. It accepted that capacity must be considered about the complexity of the transaction in question but found that the 2016 will was no more complex than the 2005 will.
Accordingly, the EWCA dismissed the claim by the other family members that the will was invalid due to lack of capacity, and granted Gareth probate of his father's 2016 will.
This case emphasises the importance of the requirement to follow the golden rule in cases where there may be later questions as to capacity, and the importance of very detailed attendance notes made by the solicitor drafting the will, recording that the will was read back to the testator and that the solicitor considered that the testator was capable of understanding the will.
If you consider that a testator's will ought to be challenged owing to the deceased's lack of testamentary capacity, we can assist by carrying out the necessary investigations, reviewing evidence and advising on a potential claim. If we consider that you have a potential claim, we can then act on your behalf in pursuing a claim challenging the validity of the will owing to the deceased's lack of testamentary capacity, offering a range of funding options depending on the facts of the case.
For more information contact Rebecca Beaumont in our Contesting a Will department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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