Certain about capacity? Expert evidence is no guarantee...

Claims involving lack of capacity and an individual’s ability to make a will, as a result, are often based on a variety of evidence sources. The use of medical evidence came back into the spotlight in the case of Hughes v Pritchard which for some practitioners may have provided a surprising result.

Evan Hughes died leaving a will executed just under a year before his death. That will was executed at a time when Evan was living with dementia and also grieving the loss of his son and the last will was challenged because Evan lacked testamentary capacity (as well as several other claims not discussed here). The court agreed, finding the will was invalid due to a lack of capacity but that, had it not been invalid for such a reason, a farmland plot would have been subject to a proprietary estoppel claim in any event.

The slightly unusual factors in the case are that the will was drafted by a solicitor who followed the ‘Golden Rule’ which is often not the case in such claims. The expert evidence presented to the court also suggested Evan had testamentary capacity. However, the expert gave evidence at trial that he had not appreciated the significant changes in the last will compared to Evan’s previous wills. The court was not persuaded however that Evan had appreciated the “understanding that he had had with his son Elfed over many years” nor “the promises made to his daughter-in-law and grandsons thereafter” (judgement para 86) and how these were then affected by the subsequent changes he made to his will.

The case is a reminder that reliance on expert or medical evidence is no guarantee of successfully upholding (or indeed overturning in some cases) a will. All aspects of the testator’s intentions should be considered carefully, especially when taking instructions for a new will or in bringing/defending a claim. A will drafter should not be afraid to question their client on the changes, particularly where they are quite significant or change a long-standing history of testamentary intentions in early wills. Reviewing earlier wills with a testator helps to get a feel for the changes being made and to verify the information being given by them or others. It will also help if a Larke v Nugus enquiry about the circumstances in which the will was made arrives which will inevitably ask if such discussion took place.

Hughes v Pritchard & Others [2021] EWHC 1580 (Ch)