A question of testamentary capacity?

The High Court decision in the case of Hughes v Pritchard [2021] EWHC 1580 (Ch) has caused concern for solicitors involved in the preparation of Wills.

The case appeared to place little weight on the skill of the lawyer in assessing their clients’ capacity.  It further undermined reliance on medical experts in cases of doubtful testamentary capacity, despite the so-called “golden rule” set out in Kenward v Adams [1975] providing that the will of an aged testator or a testator who has suffered a serious illness, should be witnessed and approved by a medical practitioner who satisfies themselves of the capacity and understanding of the testator and records and preserves their findings.

On 24 March 2022, the Court of Appeal handed down judgment in the Appeal. The full judgment can be found at [2022] EWCA 386.

So, what does the appeal mean in practice?

Facts

Mr Evan Hughes, (“Evan”), a Welsh farmer, died in 2017 having suffered dementia which was “seriously deteriorating”, causing “impairment” during 2016, possibly exacerbated by the effects of an earlier stroke.  In March 2016 Evan gave instructions for a Will which altered his existing testamentary intentions, his son Elfed having died before him in September 2015.  In an earlier Will, Evan was to leave a large tranche of his farmland to Elfed.  The new Will was executed on 07 July 2016 (“the 2016 Will”) and gave, amongst other things, 58 acres of farmland to his son, Gareth, which had previously been suggested would pass to Elfed.  

At first instance, and despite the evidence of the solicitor who drafted the Will, including their detailed attendance notes, and the evidence of Evan’s General Practitioner, who had met with Evan to determine his mental capacity to make the 2016 Will, the High Court pronounced the 2016 Will invalid on the basis that Evan lacked testamentary capacity.

Issues

The decision of the High Court had caused concern for private client solicitors and medical practitioners.  Indirectly, the decision also cast some doubt on the longstanding test for testamentary capacity, laid out in Banks v Goodfellow (1837), as the High Court appeared to consider factors not within the terms of the original, widely applied test for testamentary capacity.

The Appeal, brought by Gareth, the surviving son of Evan and who lost out when the 2016 Will was declared invalid, was advanced on several grounds, including that the Judge:

• was wrong to ignore the very strong presumption that a Will which has been drafted by an experienced independent lawyer should only be set aside on the clearest evidence of lack of mental capacity (Hawes v Burgess [2013]); 
• misdirected himself in law when he concluded that making the 2016 Will was a "more complex transaction", testamentary capacity being relevant to the making of the Will, as opposed to the precise Will being made; 
• was wrong to decide that the General Practitioner’s evidence he would, in retrospect, have undertaken a different assessment of Evan should invalidate his opinion that Evan had testamentary capacity at the material time;
• was wrong to disregard the evidence of the drafting solicitor; 
• could not reasonably find a lack of testamentary capacity on the evidence available. 

Decision

The Court of Appeal reiterated the correctness of the Banks v Goodfellow test, in the circumstances of the case, namely that there are three relevant questions to ask:

• was the Deceased able to understand the nature of the act of making the 2016 Will and its effect?
• was the Deceased able to understand the extent of the property of which he was disposing?
• was the Deceased able to comprehend and appreciate the claims to which he ought to give effect?

The Court also reiterated that whilst expert evidence may be of great assistance in determining issues, the decision as to whether a testator had testamentary capacity at the time of making a Will is a decision for the Court, as set out in Key v Key [2010].

Accordingly, whilst the evidence of a General Practitioner who assesses a testator is not definitive and testamentary capacity is for the Court to determine, it is clear that, in principle, the medical evidence of a Practitioner who assesses capacity, having met a testator, should be given considerable weight when determining whether that testator had testamentary capacity.  The Court of Appeal confirmed that a solicitor is entitled to rely on medical evidence of testamentary capacity which they commission when preparing a will.

The Court of Appeal found that the Judge was focused on whether Evan had the capacity to understand the "change he was making from his previous Wills" rather than whether he had testamentary capacity as required by the Banks v Goodfellow test.  The Judge also appears to have been concerned about whether Evan had judged "fairly" between competing beneficiaries. The Court of Appeal reiterated that this is not the law. As long as the Banks v Goodfellow test is satisfied, a testator is entitled to leave his Estate as he thinks fit, however unkind or unfair the dispositions may seem, and does not have to provide reasons for his decisions.

Key Point

The Banks v Goodfellow test remains good law without any further elements being added to the test. Solicitors and medical professionals do not need to consider aspects such as “fairness” when considering competing claims upon a testator's Estate during the Will drafting process. Equally, there is no need for a testator to justify any change in their testamentary dispositions.

The Court of Appeal went so far as to state that in their Judgment, if proper weight was given to the evidence of the solicitor drafting the 2016 Will and the General Practitioner, the Judge's conclusion was not open to him on the evidence.

The Judgment will be a relief to solicitors and medical experts. It appears that normal service has resumed.

However, the battle in Hughes v Pritchard is not yet over.  Whilst the 2016 Will has now been declared valid the case is to return to the High Court for determination as to whether Evan’s promises to his son Elfed that he would inherit the farmland are enforceable under the doctrine of proprietary estoppel.