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The recent Court of Appeal decision in the case of Hughes v Pritchard has provided guidance on the approach the Courts should take to will validity challenges based on testamentary capacity, on the weight to attach to a professionally made will and on the importance of following the Golden Rule.
This case involved a dispute as to the last 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 Evan’s 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:
- Lack of testamentary capacity,
- Want of knowledge or approval, and/or
- Undue influence exerted on the deceased by Gareth.
They also argued that even if the 2016 will 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 trial 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 trial judge concluded that Evan lacked capacity to understand and appreciate the following three factors:
- his and Elfed’s long-standing agreement upon which Elfed had heavily relied,
- the extent of Yr Efail, and
- 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.
On appeal, the Court reversed the trial judge’s decision on the basis that he had erred in his approach to testamentary capacity, concluding that the judge’s findings were “not open to him on the evidence”. In particular, the appellant judge agreed with the defendant’s argument that, when a will has been drafted by an experienced and independent lawyer, that will should only be set aside if there is clear evidence of a lack of mental capacity.
In this case, the trial judge had erred in his evaluation of the importance of the evidence given. Specifically, the evidence of the will-drafting solicitor, who had been “meticulous” and had taken the precaution of obtaining a capacity assessment for the Deceased, as well as that of the GP whose capacity assessment the solicitor relied upon and the expert who submitted a report in support of this.
The Court held that, although the GP had questioned his own assessment at trial, he had not repudiated it, and the solicitor was entitled to rely on their evidence when making a judgment as to the Deceased’s testamentary capacity. The Court therefore found that the trial judge was wrong to effectively dismiss their evidence.
The Court held that, had the trial judge given proper weight to the evidence of the will-drafting solicitor, the GP, and the expert, the conclusion he arrived at would not have been open to him on the evidence. The order invalidating the 2016 will was therefore set aside. In regard to the proprietary estoppel claim, the Court of Appeal held that the trial judge’s reasoning in relation to the representations made and Elfed’s reliance on these representations was sufficient. However, the trial judge’s reasoning in regard to detriment and remedy was not. The Court held that there had been insufficient consideration of: 1) the advantages Elfed had received from the arrangement, and 2) the requirement of unconscionability.
The Court of Appeal therefore could not make a substantive judgment on the points of detriment and remedy and instead remitted these aspects of the claim back to the High Court. An update will be provided once this outstanding issue has been concluded by the High Court.
The Court of Appeal’s decision in this case is a rare example of an appellate court reversing the factual conclusions of a trial judge.
The case highlights the importance of the Golden Rule and of the need for the Will drafter to make and keep detailed attendance notes of the instruction received and advice given, ideally recording the fact that the will was read back to the testator and that the solicitor was satisfied that the testator understood the terms and effect of the will.
Finally, the case is also a reminder that claims such as proprietary estoppel should not be forgotten and that, in the event of the death of the potential claimant, the value of the claim will vest in their estate.