The judgment by the Court of Appeal in the recent case of Hughes v Pritchard  EWCA Civ 386 (the decision at first instance is described in this previous blog) revisits long-established law and serves as a useful reminder to practitioners advising clients in relation to these types of cases.
The background to the case can be summarised as follows:
- Evan Hughes died in March 2017, aged 84, having written and executed his final Will in July 2016. His previous Will was made in 2005.
- Mr Hughes had moderately severe dementia and was grieving one of his three children, Elfed, who had died in 2015
- Mr Hughes’ estate was largely comprised of significant agricultural land in Wales, which he left to his surviving son (and executor of his estate), Gareth, as well as some shares in his company. Under the 2005 Will this land had been bequeathed to Elfed. Under the 2016 Will Elfed’s widow benefited from a life interest in a separate piece of land which was on her death to pass to her three sons equally.
- Elfed’s widow challenged the 2016 Will on the basis of lack of testamentary capacity.
- Gareth defended the claim relying on the fact that the solicitor who was instructed to prepare the Will, and who was aware of Mr Hughes’ capacity issues at the time, had very detailed attendance notes and had arranged an assessment of the deceased’s capacity with his GP, Dr Pritchard. The outcome of the assessment was that Mr Hughes had capacity to change his Will. A single joint expert opinion to the High Court agreed with this.
- At the trial, Dr Pritchard gave evidence to the effect that he was misled into thinking the Will only made minor changes (rather than materially altering the previous dispositions) and that this is what Mr Hughes believed. This was supported by witness evidence and the judge set aside the Will.
- Gareth appealed, and the decision was overturned with the Court of Appeal overturning the factual findings made at first instance.
The Court of Appeal concluded that the trial judge, His Honour Judge Jarman QC, had been wrong to find that Dr Pritchard’s lack of knowledge of Mr Hughes’ previous intentions diminished his evidence in relation to capacity. The court held “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”. Furthermore, the court found the judge was wrong to conclude that the 2016 Will was more complex and therefore required greater capacity. Capacity must be considered in relation to the complexity of the transaction in question, but the 2016 Will was no more complex than the earlier Will.
The Court of Appeal also held that the judge was wrong to dismiss the weight of the evidence of Mr Hughes’ solicitor who was aware of the legal requirements for executing a will. The court said “Where the will is explicable and rational on its face, the conclusion reached by an independent lawyer who is aware of the relevant surrounding circumstances, has taken instructions for the will and produced a draft, met with the testator, is fully aware of the requirements of the law in relation to testamentary capacity and has discussed the draft and read it over to the testator, is likely to be of considerable importance when determining whether a testator has testamentary capacity. It is a very strong thing … to find that such a testator was not mentally capable of making a will”.
The case reinforces the importance of the Will file. This should include evidence of the testator’s instructions, detailed attendance notes of their discussions with the Will drafter, and the Will drafter’s conclusions as to their testamentary capacity.
The case also highlights the importance of the ‘golden rule’ - where there is any doubt about a testator’s capacity to make a Will, the opinion of a medical expert should be obtained. That said, whilst reports on a testator’s testamentary capacity are certainly persuasive, they may not always be determinative. The Will file (and the evidence of an independent lawyer who has prepared a disputed Will) will be invaluable in providing context to a capacity report and allowing a judge to consider capacity holistically. And whilst the Court of Appeal held that knowledge of previous testamentary intentions was not necessary to assess capacity it was said by the court that it would be prudent for that information to be provided where possible.
Ultimately, in validity challenges on the basis of a lack of capacity the test in Banks v Goodfellow remains central and the testator must:
- understand the nature of making a Will and its effects;
- be able to understand the extent of the property they own;
- understand and appreciate the people in their life who should benefit from their Will; and
- not be affected by any disorder of the mind.
The importance of any parties to a will challenge on this ground properly investigating the issues early on in a case by obtaining factual witness statements giving detailed ‘relevant time’ evidence, reviewing the will file and medical records and where possible interviewing the witnesses to the will should not be underestimated.