In the recent case of Hughes v Pritchard, 2021 EWHC 1580 Ch, the High Court held that the deceased’s last Will was invalid notwithstanding the fact that the Golden Rule had been followed and both a contemporaneous medical report and the report of the parties’ single joint expert confirmed that the deceased had testamentary capacity when the Will was prepared and executed. So, how much weight can be placed on medical evidence when the validity of a Will is challenged for lack of testamentary capacity?
The claim relates to the last Will of Evan Hughes, a farmer from Anglesey, who made a Will on 7 July 2016 (the 2016 Will), shortly after the tragic death of his son, Elfred. The 2016 Will departed from Evan’s previous Will, made in 2005, by leaving 56 acres of farmland, which had previously been left to Elfred, to his surviving son, Gareth.
Following Evan’s death in March 2017, his daughter, Carys, Elfred’s widow, Gwen, and their son, Stephen, challenged the validity of the 2016 Will on the ground that Evan lacked testamentary capacity when it was made. They also contended that Evan did not have knowledge and approval of the contents of the 2016 Will and/or that it was procured as a result of undue influence from Gareth. Finally, and in the event that the 2016 Will was found to be valid, they advanced a claim in relation to the 56 acres of land on behalf of Elfred’s estate and on the basis of proprietary estoppel.
The claim was heard in May of this year at a hybrid trial which saw the Court hear evidence from over 20 witnesses over the course of four days, some in person and some by video link, some in English and some in Welsh.
His Honour Judge Jarman QC cited the recently decided case of Clitheroe v Bond  EWHC 1185 (Ch) which confirmed that the correct test for determining testamentary capacity remains as set down in Banks v Goodfellow (1870) LR 5 QB 549 and that this test survives the statutory provisions of the Mental Capacity Act 2005. The Judge also made reference to the established guidance in Sharp –v- Adam  EWCA Civ 449 and Key –v- Key  EWHC 408 (Ch) as to the steps which should be followed where a solicitor, or Will drafter, has any doubts as to the capacity of a testator wishing to make a Will. This has long been known as the Golden Rule and provides that an assessment by a medical expert should be obtained in these circumstances and before a Will is prepared.
In this case, it was accepted that Evan had moderate dementia at the time the 2016 Will was prepared. Unsurprisingly, the solicitors instructed to draft the 2016 Will had concerns regarding Evan’s capacity when they met with him and so rightly requested that his GP, Dr Pritchard, carry out an assessment of his testamentary capacity. Dr Pritchard’s contemporaneous report confirmed that “he had no issues with the capacity of Evan Hughes to change his will and would be happy to act as witness”. Accordingly, the 2016 Will was prepared and signed in line with the instructions provided by Evan.
In preparation for the trial, Dr Series was jointly instructed by the parties to provide a retrospective capacity report. He was provided with copies of Evan’s medical records, as well as the witness statements of Dr Pritchard and the solicitor who drafted the Will. Following a review of this evidence, Dr Series concluded that “it is more likely than not that [Evan] had testamentary capacity when he gave instructions for and executed his 2016 will”.
However, despite the apparently conclusive medical evidence to support a finding that Evan had testamentary capacity to make the 2016 Will, the evidence provided by Dr Pritchard at trial was enough to cast serious doubt on Evan’s state of mind when he provided the instructions for the 2016 Will. In particular, Dr Pritchard expressed concerns that when he carried out his assessment of Evan “he was under the apprehension that the proposed new will made only minor changes to the 2005 will so as to substitute the sons of Elfred Hughes as the beneficiaries of the gift of land previously given to him”. In reality, of course, the changes were in fact much more significant leaving half of Evan’s land to Gareth and not to Elfred’s children. Crucially, Dr Pritchard also told the Court he considered that Evan had believed that the changes to his Will were minor, and that he had not properly understand their implications.
On hearing Dr Pritchard’s evidence, the Court took the view that both Dr Pritchard’s 2017 report and Dr Series report (which was based, in part, on Dr Pritchard’s contemporaneous evidence) carried less weight and could not be wholly relied upon to determine the question of Evan’s testamentary capacity, especially as Dr Series had not had the opportunity of “seeing and hearing many witnesses who knew Evan Hughes over many years.” In the end, the Judge was persuaded by the Defendants’ arguments and held that Evan did not have testamentary capacity to make the 2016 Will. In particular, he found that:
- Evan did not have the capacity to appreciate the understanding that he had had with Elfred as to the future of the farmland or the promises he had subsequently made to Gwen and Stephen;
- Evan lacked capacity to understand the extent of the land; and
- Evan lacked the capacity to understand that the changes implemented by the 2016 Will were more than just those necessary to “neaten” up his testamentary provisions following the death of his son Elfed but were, in fact, a significant departure from his previous testamentary dispositions.
Although the Court had no need to determine the defendants’ arguments in relation to want of knowledge and approval and undue influence, the Judge set out his findings on both grounds to avoid any doubt in the event that the case was subject to appeal and his judgment as to testamentary capacity was overturned. He dismissed both arguments, stating that the evidence showed that if Evan was found to have had the capacity to make the 2016 Will then he would likely also have known and approved of its terms. He also found that a claim of undue influence was not made out and that Evan’s volition had not been overcome by Gareth’s conduct towards him.
However, the Judge did uphold the claim of proprietary estoppel finding that Elfred did, in fact, rely on Evan’s earlier promises to leave him the land. Further, Elfred suffered a detriment in reliance on those promises working very long hours on the farm, foregoing any holidays and sacrificing his family life. As a result, even if the 2016 Will were valid, the land is subject to an equity in favour of Elfred’s estate.
This case demonstrates that whilst expert witnesses will often offer invaluable evidence in support, or defence, of a validity claim, there is no guarantee that a Court will accept the view of an expert without question or further interrogation. We are reminded of the words of Briggs J in Key –v- Key when he said:
“the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges”.
The decision in this case reminds us of the importance of considering all of the evidence, including statement of lay witnesses, and not just the medical evidence when we are considering the question of testamentary capacity. Put simply, one cannot rely on a robust expert witness alone to overturn or prove a disputed Will – rather, all of the evidence must be weighed in the round and given due consideration when faced with a validity claim.