Court overturns judge's judgement on capacity to make a will

In the case of Hughes v Pritchard, the Court of Appeal overturned the decision of the trial judge in the probate claim that Evan Richard Hughes lacked testamentary capacity to create a will in 2016. Instead, all parties would have to revert to the original will created in 2005. 

This appeal emphasises the importance of medical evidence when determining capacity to make a will.

The background of the Hughes v Pritchard case

Evan Richard Hughes (‘Evan’) died March 2017. Evan had 3 children – Gareth, Carys, and Elfred. By his earlier will (‘2005 will’), Evan left the shares in the family business to Gareth and Carys, and all the farmland to Elfred. Elfred took his own life 9 months prior to the execution of the 2016 will. 6 months after Elfred’s death, Evan executed a will (‘2016 will’). 

The main change of the 2016 will was that the farmland would be divided between Gareth and Elfred’s estate equally (other property to go to Carys), and the shares in the family company would be divided between Evan’s grandchildren. This change was not favourable to Elfred’s estate as originally the estate would have obtained the farmland completely.

Before executing the 2016 will, the drafting solicitor followed the Golden Rule when creating a will for an elderly testator. When creating a will for an elderly person or a person who has suffered a serious illness, a medical practitioner should be approached to produce a capacity assessment. The medical practitioner should also act as a witness to the will and should record and keep any findings they make. The GP who carried out the capacity assessment concluded that he had no concerns with Evan’s capacity to execute the 2016 will.

Following Evan's death, Gareth sought to rely on the validity of the 2016 will. However, Elfred’s widow and sons brought a counterclaim that the 2016 will was not valid as Evan lacked capacity to make the 2016 will.

What happened in the first trial?

The overall finding from HHJ Jarman QC was that the deceased did not have testamentary capacity to validly execute the 2016 will. Despite the will drafting solicitor following the golden rule by obtaining a capacity assessment from a medical practitioner and having them witness the will. The trial judge preferred the defendant’s evidence and gave little weight to the claimant’s evidence.

What happened on appeal?

On 24 March 2022, the Court of Appeal overturned HHJ Jarman QC’s decision. It is very unusual for an appeal court to overturn a case on the facts, but the court considered it right to do so on this occasion. It was found that the trial judge was wrong not to value the importance of the evidence provided by the will drafting solicitor that  had followed the Golden Rule when executing the will. 

The solicitor correctly dealt with drafting the 2016 will by being mindful of Evan’s age and continued this caution by obtaining a medical practitioner’s professional opinion on his capacity. Weight was given to the capacity report, the medical practitioner acting as a witness to the 2016 will, the GP having seen Evan on numerous occasions, and that after all this the medical practitioner and solicitor were happy with executing the will.

Conclusion

This judgement repositions the test set out in Banks v Goodfellow [1870] at the centre of the assessment of capacity. 

The Banks v Goodfellow test states that a person has capacity to make a will where they: 

• understand the nature of the will and its effects; 
• have some understanding of the extent of the property of which they are disposing under the will; are mindful of the persons they would usually be expected to provide for; and 
• are free from any delusion of the mind that would affect their dispositions to those people. 

If the test is satisfied, then a person may dispose of his property in any way they may like. When taking instructions from people wanting to make a will, it is beneficial to follow the Golden Rule and obtain a capacity report if there is any doubt.

This case is an important reminder in relation to probate claims that capacity reports are important but not determinative and provides a significant reminder of how unpredictable probate claims can be, even when the evidence seems strong.

If you have any worries regarding the validity of a will, or are looking to defend a claim, our Court of Protection and Inheritance Disputes Team will be able to advise you on the merits of your case, and how best to tackle your matter. If you require any more information on this contact 01206 217307 or email lisa.cox@birkettlong.co.uk.