The recent case of Hughes v Pritchard [2021] EWHC 1580 (Ch) has outlined the importance of providing complete and comprehensive instructions to a health care professional tasked with providing a report on testamentary capacity in order to satisfy the “Golden Rule” when making a will.
This case involved a dispute as to the final will of the late Evan Hughes. Evan was a farmer based in Wales, who by the time of his death owned 58 acres of farmland, known as Yr Efail. Evan had three children, Elfed, Carys and Gareth.
Evan had promised to leave his farmland to Elfed and had made a number of wills to that effect. On the understanding that the farm would one day be his, Elfed worked long hours on the farm and invested his own money on its upkeep.
By 2014, Evan’s family started to notice a deterioration in his memory, as well as significant changes in his behaviour. This was found to have been caused by a stroke that had damaged some of the blood vessels in his brain, as well as moderate to severe dementia.
Sadly, Elfed took his own life in September 2015. Evan was devastated and his health deteriorated rapidly after this point. In July 2016, Evan purportedly made a will in which, amongst some other changes, he left Yr Efail to Gareth, in breach of his promises to Elfed and in contrast with his earlier wills. This will was drafted by a solicitor, who, in light of Evan’s age and ill health, satisfied herself that Evan had capacity to make the will by arranging for Evans capacity to be assessed by a doctor (this is known as the “Golden Rule”).
Evan passed away in March 2017.
Elfed’s widow and his son argued that the 2016 will was invalid such that Evan’s estate should pass in accordance with his earlier will (and so Yr Efail would pass to them as Elfed’s beneficiaries). They claimed the 2016 will was invalid on the following grounds:
They also argued that even if the 2016 was valid, then the farmland was subject to a proprietary estoppel, so that Yr Efail would pass to Elfed’s beneficiaries in any event.
Despite both Evan’s GP and the parties’ joint expert concluding that Evan had the necessary capacity, the judge concluded that Evan lacked testamentary capacity and thus the 2016 will was invalid. A key factor for the judge was the GP casting doubt on his own assessment at trial – as he admitted that he had not been properly informed of the significance of the changes being made in comparison to Evan’s previous wills. As a result, this also undermined the opinion of the joint expert, whose own conclusion had taken into account that of the GP’s.
The judge concluded that Evan lacked capacity to understand and appreciate the following three factors:
1) his and Elfed’s long-standing agreement upon which Elfed had heavily relied,
2) the extent of Yr Efail, and
3) the extent of the changes made by the 2016 will.
For completeness, the court also concluded that even if the will had been valid, it was satisfied that Yr Efail was in any event subject to a proprietary estoppel claim.
Of particular interest to legal practitioners is the fact that the solicitor in this case followed the ‘Golden Rule’ of seeking an expert medical opinion regarding Evan’s testamentary capacity.
This case strengthens the earlier finding in Key v Key [2010] that the Golden Rule is not itself the touchstone of validity. It highlights the importance that, to ensure it has been properly followed, the healthcare professional assessing the testator’s capacity is comprehensively briefed as to not only the terms of the proposed will, but crucially, how it differs to any earlier will and the impact of the new will and any potential claims that may arise against the testator’s estate as a result of it.
Finally, the case is also a reminder that claims such as proprietary estoppel should not be forgotten in the event of the death of the potential claimant as the value of the claim will vest in their estate.
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