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Hughes v Pritchard: How far do you need to go to establish capacity?12th July 2021 Will Disputes
If it is considered that a deceased person lacked testamentary capacity when making a will, and the validity of the will is therefore brought into question, then a person may bring a challenge to try and overturn the will.
In an interesting and arguably unusual decision, judgment was handed down in the case of Hughes v Pritchard (2021 EWHC 1580 Ch) on 11 June 2021. Despite the solicitor who drafted the will following the ‘Golden Rule,’ and there being a GP and expert report concluding that the Deceased had capacity at the time they executed their Will, the Judge still ruled that the Deceased lacked capacity at the time.
The Golden Rule
When drafting a will for a client, it is always important for solicitors to ensure that their client has testamentary capacity, as set out in the test in the well-established case of Banks v Goodfellow, to ensure the will is valid. This is particularly important where the client is elderly, vulnerable or seriously ill, where the possibility of capacity issues are more likely to arise. The law provides further guidance in relation to this, with the ‘Golden Rule’ of will making, as provided for in the case of Re Simpson  121 SJ 224. This rule provides that in the case of an elderly or seriously ill person who wishes to make a new will, the solicitor should seek the opinion of a medical expert regarding the person’s capacity to make a new will. This was of importance in the case of Hughes v Pritchard.
This case concerned the estate of Evan Richard Hughes (“the Deceased”) who died in March 2017, and the source of the dispute was his last will dated 7 July 2016 (“the 2016 Will.”)
The Deceased had three children, Gareth, Cerys and Elfed. Elfed unfortunately predeceased his father, in tragic circumstances.
In his previous will, (“the 2005 Will”) the Deceased left his shares in a family business to Gareth and Cerys and left all of his farm land to Elfed. Throughout his life, Elfed had always been told that he was being left the farm land, and in reliance of this promise, he worked very long hours on the farm, as well as working for the family company. For many years, the Deceased had made all of his children aware of what would happen with his estate upon his death.
Shortly after the death of Elfed, the Deceased changed his will and created the 2016 Will. At this time, the Deceased was said to be suffering from moderate to severe dementia. The main change made in the 2016 Will was that his son Gareth would now inherit the majority of the farmland, with the residue being left to Elfed’s widow, Gwen. The solicitor dealing with the 2016 Will arranged for a capacity assessment to be carried out in relation to the Deceased, before the new will was to be executed. This was in accordance with the Golden Rule. The doctor providing the assessment was provided with a copy of the proposed 2016 Will and the existing 2005 Will. Following a meeting with the Deceased, the doctor confirmed that he had no concerns as to the capacity of the Deceased to change his will, and that he would be happy to act as a witness.
Following the Deceased’s death, Gareth, who had benefitted from the change, sought to propound the validity of the 2016 Will. However, the Defendants (the Deceased’s daughter and Elfed’s widow and son,) brought a counter-claim, arguing that the 2016 Will was not valid as the Deceased lacked testamentary capacity at the time it was made, by reason of his dementia.
Despite there being both a GP report and expert report confirming that the Deceased was considered to have testamentary capacity when making the 2016 Will, the Judge held that the deceased in fact lacked testamentary capacity when making the 2016 Will, and therefore the previous 2005 Will was to be taken as his last Will.
Further, despite the solicitor who drafted the 2016 Will having followed the Golden rule, as well as there being a GP report and expert report, the Judge held that applying the Banks v Goodfellow test for testamentary capacity, the Deceased did not have the relevant capacity to appreciate the understanding that he had with his son Elfed over the years in connection with the farmland, and his subsequent reliance on this. The Judge also concluded that he lacked the capacity to be able to fully understand the extent of the farmland, and to further understand that the changes in the 2016 Will were more than just minor changes to the 2005 Will.
In addition to this, the Judge also relied on the fact that in giving evidence, the GP subsequently placed doubt on the reliability of his own account when providing the capacity assessment, as he too had not been made aware of the extent of the changes which the 2016 Will would encompass when compared with the 2005 Will. He initially believed that the Deceased was only making small changes to the original 2005 Will and that distinction may have changed his view on capacity at the time.
This case serves as an important reminder in the case of validity challenges, that capacity reports remain persuasive evidence, but are not determinative. Even in the presence of seemingly convincing evidence from a GP and an expert that the Deceased had capacity, this was still not enough to prove capacity in this case. Just because you have a capacity report does not necessarily mean that there can be no successful challenge to the validity of the will. This arguably adds to the inherent uncertainty and costs risk associated with going to court in such cases.
The case also highlights the importance of providing complete and comprehensive instructions to a healthcare professional when obtaining a capacity report. For example, there should be clear details provided as to the extent of the changes to any will, as this could impact their assessment of capacity as the extent to which changes are made could be significant. In this case, it wasn’t just a minor change to the will, but instead a major asset (ie the farmland) was being redirected and was worth almost £490,000.
As a final point, on the facts of this case, even if the 2016 Will was held to be valid, there would still would have been a proprietary estoppel claim, which Elfed’s widow could bring on his behalf.