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Hughes v Pritchard [2021] EWHC 1580 (Ch): overriding the medical capacity assessment?

On 11 June 2021, HHJ Jarman QC sitting at the High Court handed down judgment in Hughes v Pritchard[2021] EWHC 1580 (Ch).  The Court notably found the testator to lack capacity and his last will to be invalid despite a contemporaneous medical capacity assessment finding the testator to have capacity.

Jennifer Seaman and Bianca Venkata provide a brief overview of the case and suggests what lessons can be learned to ensure the validity of wills going forward.

The facts

Mr Hughes owned considerable farmland in Wales. Mr Hughes had three children: an eldest son Elfed, a second son Gareth and a daughter Carys. Elfed worked long hours on his father’s farm for no remuneration. Mr Hughes promised Elfed, his wife Gwen and their three sons that one day the farmland would be theirs.

Mr Hughes executed his first will on 18 December 1990. He left his farmland to Elfed.  On 7 August 2005, Mr Hughes executed a second will which was similar to the 1990 will.

Tragically, on 18 September 2015 Elfed committed suicide. Mr Hughes was devastated. In December 2015, Mr Hughes was hospitalised for two days for gastrointestinal bleeding and assessed by a consultant psychiatrist as having a moderately severe degree of impairment. He was found to have suffered a stroke.

On 11 March 2016, Mr Hughes instructed a solicitor to draft a third will in which for the first time he left 58 acres of farmland known as “Yr Efail” to his second son Gareth. The solicitor requested Mr Hughes’ GP, Dr Pritchard, to provide a capacity assessment as to whether he had capacity to make the 2016 will.  A copy of Mr Hughes’ 2005 will and draft 2016 will was enclosed with the GP’s letter of instruction.  On 14 June 2016, Dr Pritchard went to see Mr Hughes at his home and took a draft of the 2016 will.  Dr Pritchard then provided a letter stating that he had no issues with the capacity of Mr Hughes to change his will. On 7 July 2016, the solicitors read out the draft 2016 will to Mr Hughes who after each clause confirmed his agreement and the 2016 will was executed.

On 19 July 2016, Dr Pritchard referred Mr Hughes to a community psychiatric nurse stating that he had a mixed type of dementia which was deteriorating quite rapidly.  In January 2017, Mr Hughes signed a stock transfer form in favour of his son Gareth.  On 7 May 2017, Mr Hughes died at age 84 years as a result of dementia-related complications.

The Defendants, Elfed’s widow Gwen and Elfred’s eldest son challenged the validity of the 2016 will on the basis that Mr Hughes lacked testamentary capacity, want of knowledge and approval and undue influence. They also argued that the farmland was subject to a proprietary estoppel.

The Judgment

The Court heard over 20 witnesses. Evidence was given in English and in Welsh.

HHJ Jarman QC referred to the “golden rule” that where there is doubt about a testator’s capacity there should be a capacity assessment by a medical expert. In this case, Dr Pritchard had performed such a capacity assessment.

The parties jointly instructed Dr Series, a consultant old age psychiatrist, regarding Mr Hughes’ capacity to execute the 2016 will.  Dr Series concluded that the combined evidence of the solicitor and Dr Pritchard suggested that it was more likely than not that Mr Hughes had testamentary capacity.

During the trial, Dr Pritchard said in evidence that when he caried out the capacity assessment he believed that only minor changes were being made in the 2005 will, namely to substitute the sons of Elfed as the beneficiaries instead of Elfed. This was despite the 2005 will and the 2016 will being before him. As a result Dr Pritchard did not question Mr Hughes about why he was leaving substantial farmland to Gareth.

The Judge found that Dr Pritchard’s misunderstanding about the extent of the changes in the 2016 will significantly impacted upon the weight to be attached to his capacity assessment and as a consequence undermined the reports of the solicitor and the expert opinion of Dr Series.

The Judge found that although the 2016 will was rational on its face, there was a real doubt about Mr Hughes’ testamentary capacity which had not been displaced. On the balance of probabilities Mr Hughes did not have capacity in three respects, any one of which was sufficient to vitiate the 2016 will:

  • Firstly, Mr Hughes did not have capacity to appreciate the understanding that he had with Elfed and his family that one day the farmland would be theirs;
  • Secondly, Mr Hughes lacked capacity to understand the extent of the farmland which he purported to give to Gareth in the 2016 will;
  • Thirdly, Mr Hughes lacked capacity to understand that the changes in the 2016 will went further than merely “neatening up” the 2005 will.

The Judge also found that even if the 2016 will was valid, the claim of proprietary estoppel would succeed and the farmland would be subject to an equity in favour of Elfed’s estate. There was a sufficiently clear representation by Mr Hughes to Elfed, Gwen and their children, over the years that one day the farmland would be theirs. In reliance, Elfed had worked very long hours on the land. The Judge rejected the claims of undue influence or lack of want and knowledge.

Comment

This case shows that even if the “golden rule” is followed and a medical capacity assessment is obtained the Courts will not necessarily find that the testator has capacity.

A lesson to be taken from Hughes is the importance of the medical capacity expert understanding the precise nature of the changes to be made to the will and exploring this with the testator and exploring whether the testator had the ability to understand the claims of beneficiaries which are both included and excluded in the will. It is not sufficient to merely place copies of the various wills before the expert, as was the case with Dr Pritchard, but there needs to be a thorough explanation of the changes made so that the capacity assessment can be properly informed and all the necessary questions asked. Had Dr Pritchard understood the significance of the changes made in the 2016 will and still found that Mr Hughes had capacity, in our opinion is likely that the Court would have found that Mr Hughes had testamentary capacity and the 2016 will would be valid.

Find out more

Jennifer Seaman’s practice in chancery and commercial litigation has an emphasis on pensions, trusts and probate disputes, civil fraud, professional negligence, property and insolvency.

Bianca Venkata accepts instructions in all areas of Chambers’ practice including commercial litigation, probate, employment & discrimination, financial services, personal injury, inquests and international related matters.

Members of our Private Client Team have extensive expertise in  family asset and governance structure planning, estate planning, probate, inheritance disputes, the administration of estates and trust disputes. To find out more or to instruct Jennifer or Bianca, please contact Matt Sale (+44 (0)20 7427 4910).

Legal Blog & Publications, News, Private Client 3 Aug, 2021

Authors

Jennifer Seaman

Call: 2007

Bianca Venkata

Call: 2014

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