23rd June, 2021
All that glitters, is not gold – Hughes v Pritchard and others 
The recent decision handed down by the High Court in Hughes v Pritchard and others  EWHC 1580 (Ch) highlights the importance of providing complete and comprehensive instructions to a health care professional tasked with proving a report on testamentary capacity to satisfy the “Golden Rule”.
Evan Hughes, a farmer from North Wales, died in March 2017, aged 84. One of his sons, Gareth Hughes, sought to prove his purported last will and testament dated 7 July 2016 (“the 2016 will”), which made significant provision for Gareth. The defendants were, Evan’s sister – Carys Pritchard, daughter in law – Gwen Hughes and eldest living son – Stephen Hughes (“the defendants”). They challenged the validity of the 2016 will on the grounds that Evan:
- lacked the requisite testamentary capacity;
- that he did not know or approve the terms of the 2016 will; and/or
- that it was procured by means of undue influence by Gareth.
In the alternative, the defendants claimed that one of Evan’s largest assets, Yr Efail, a farm comprising of 56 acres, valued at £490,000 in 2017, was subject to an equity in favour of his late son, Elfed’s estate.
Instructions for and the execution of the 2016 were provided only months after Evans’ son, Elfed Hughes, took his own life in tragic circumstances. This had a significant impact on Evan, as well as the wider family. Elfed had worked shoulder to shoulder with his father during his lifetime, working long hours in reliance on the assurance that he would receive his father’s main farm.
Additionally, Evan’s cognitive faculties had begun to decline in 2015, owing to the onset of dementia. Following Elfed’s death, his son Gareth took Evan to make a new will. The main changes to Evan’s previous will executed in 2005 were to a) leave Yr Efail, to Gareth and the rest of the farm land to Gwen Hughes (Eflred widow) for life or when she gave up farming, with it to then pass to her three sons equally. Evan’s residuary estate was to then pass to all of his grandchildren, equally.
Evan’s 2005 will (which effectively mirrored his 1990 will) left his shares in a family business to Gareth and Carys, and left all of his farm land to Elfed. By 2016 the company’s assets had all been sold and effectively it had all but ceased trading.
The solicitor who took instructions for Evans’ 2016 will sensibly sought an opinion on Evan’s testamentary capacity from his GP, Dr Pritchard, in line with the Golden Rule in Kenward v Adams  CLY 3591. The “Golden Rule” is good practice for solicitors to follow, such that they should seek the opinion of a health care professional regarding capacity to make a will when taking instructions from an elderly or seriously ill client who wishes to make a new will.
Dr Pritchard, having assessed Evan, concluded that he had testamentary capacity, as did the single joint expert at trial, Dr Hugh Series.
However, Dr Pritchard at trial felt he had been misled into thinking that the 2016 will only made minor changes, essentially replacing Elfed with his three sons, whereas it actually redirected an asset worth nearly £490,000, which had long been promised for Elfed, to Gareth. Dr Pritchard also confirmed that this was Evan’s view of the will was that it only made minor changes, supported by oral and written evidence of witnesses called by the defendants.
This caused the trial judge, HHJ Jarman QC to determine that Evan lacked the requisite testamentary capacity because:
- he could not appreciate the promise and agreement he had with Elfed regarding the farm land, to which Elfed had performed his side of the agreement;
- he could not understand the extent of Yr Efail; and
- he could not understand that the changes to his 2016 will were more than just minor changes.
Accordingly the 2005 will was held to be Evan’s last will and testament, which was to be admitted to probate. However, the defendants’ failed in their lack of knowledge and approval, as well as undue influence claims, the latter of which is likely to have costs consequences for the defendants.
However, HHJ Jarman QC also found that Yr Efail was also subject to an equity in favour of Elfed’s estate, as it was found that Evan had promised to leave Yr Efail to Elfed, who had relied on that promise, incurring a detriment by working long hours, buying land close to his father and paying the staff’s wages on the farm.
The decision is somewhat unusual, given that both the GP, who contemporaneously assessed Evan, as well as the retrospective report from Dr Series, confirmed that Evan had testamentary capacity. However, given that the court found that the GP was not fully aware of the changes to the 2016 will, that opened the door for the judge to make his finding on the lack of testamentary capacity. It therefore shows how important it is for the health care professional providing a report on capacity to be comprehensively briefed as to not only the terms of the will, but the wider family background, and crucially, the impact the changes a new will would have on the devolution of a testator’s assets compared to their earlier will.
Contested Wills, Trusts & Estates
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