Chester 01244 405 555

Grosvenor Court
Foregate Street Chester
Cheshire CH1 1HG
DX: 19990 Chester


Shrewsbury 01743 443043

Lakeside House
Oxon Business Park
Shrewsbury SY3 5HJ
DX: 148563 Shrewsbury 14

Slide e

Airport City, Manchester 0161 537 3324

Offices 204 and 205
Manchester Business Park
3000 Aviator Way
Manchester M22 5TG

Court of Appeal provides guidance on doctor’s reports

alvaro serrano hjwKMkehBco unsplash  scaled e

6th June, 2022

The Court of Appeal has recently reversed the High Court’s determination in Hughes v Pritchard & others, that Mr Evan Hughes’s last will was invalid. The High Court decision generated a lively debate amongst contentious and non-contentious private client solicitors alike, as it appeared to dilute the weight placed on a solicitor’s assessment of a testator’s capacity, even where the “Golden Rule” had been followed.

For those interested in the detailed factual background, we covered the High Court decision here. To summarise, the solicitor taking instructions for Evan’s will, sought an opinion from his GP as to his testamentary capacity, given Evan’s advancing years, in line with the colloquially known, “Golden Rule”.

However, the GP had not made aware that the effect of Evan’s instructions for his new will would significantly impact the devolution of his estate, from his current will. The GP stated in the High Court trial that, had he appreciated the effect of the difference between the two wills, – his conclusion that Mr Hughes had testamentary capacity, would have been different.

The High Court judge concluded that since the solicitor relied on the report of the GP in her own analysis of capacity, little weight should be placed on her assessment of Evan’s testamentary capacity. As a result, it was open to the judge to determine capacity. The judge therefore determined that the will was invalid on the ground of lack of testamentary capacity, despite a solicitor and medical professional determining that Evan did have testamentary capacity at the time.

The decision was appealed, and the Court of Appeal found that there was no good reason to place such limited reliance on the solicitor’s evidence and the GP’s assessment.

The judge considered commentary from the decision in Hawes v Burgess [2013] EWCA Civ 94;
“Where the will is explicable and rational on its face, the conclusion reached by an independent lawyer who is aware of the relevant surrounding circumstances, has taken instructions for the will and produced a draft, has met with the testator, is fully aware of the requirements of the law in relation to testamentary capacity and has discussed the draft and read it over to the testator, is likely to be of considerable importance when determining whether a testator has testamentary capacity.”

The Court of Appeal concluded that if proper weight had been given to the evidence of the solicitor and GP, the High Court judge’s conclusion would not have been open to him on the evidence. Despite accepting that the will was rational on its face, the judge had focused on whether Evan had capacity to understand the change he was making from his earlier will rather than whether he had capacity in accordance with the rules in Banks v Goodfellow. Ultimately, it found that the complexity of the new will was the same as the earlier one. The Court of Appeal felt the High Court judge had introduced an unwarranted requirement of fairness into Evan’s disposition, and the judgment was set aside. Accordingly, the new will was deemed valid.

The case still highlights the importance of following the “Golden-Rule” and the importance of a solicitor keeping detailed attendance notes throughout the matter.

You might also be interested in...

Handholdingkeystohouse CovidandRentArrears–WhatdoesitmeanforCommercialLandlordsandTenants

Letting Residential Property in Wales

15th June, 2022

A Guide to the New Legislation for Landlords The law as it relates to rental properties in Wales... Read More »

Government temporarily changes the rules around Fit Notes Aaron and Partners scaled e

Sick notes: a change in the law?

10th June, 2022

In order to ease the pressure GPs are currently facing, pharmacists, nurses and other healthcare professionals will soon... Read More »

International Assembly Arrives in Chester

10th June, 2022

More than 80 delegates and guests from around the world flocked to Chester as part of an event... Read More »

Contact Us