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The weight of opinion – expert evidence in testamentary capacity cases
Expert opinion of various kinds can often play a pivotal role in determining the outcome of legal cases. However, to what extent can medical evidence be relied upon when determining testamentary capacity in cases where the validity of a Will is being challenged?
This point came under the spotlight recently in Hughes v Pritchard, 2021 EWHC 1580 Ch. The High Court held that the Will in question was invalid despite the fact that medical reports confirmed that the deceased, Evan Hughes, had testamentary capacity when the Will was prepared and executed.
Mr Hughes, a farmer, made a Will in July 2016 (the 2016 Will), following the tragic death of his son, Elfred, which superseded his previous Will, made in 2005, and left 56 acres of farmland to his surviving son Gareth. This land was originally intended to pass to Elfred under the terms of Evan’s 2005 Will.
Upon Evan’s death in March 2017, the validity of the 2016 Will was challenged on testamentary capacity grounds by his daughter, Carys, Elfred’s widow, Gwen, and their son, Stephen. Further, the claimants also argued that the 2016 Will was drafted without Evan’s knowledge and approval and that it was subject to undue influence applied by Gareth. Finally, should the 2016 Will be considered as valid, they advanced a claim in relation to the contested land on behalf of Elfred’s estate and on the basis of proprietary estoppel.
As we referred to in our recent blog on Clitheroe v Bond, the Courts will always apply the test established by Banks v Goodfellow 1870 when it comes to establishing testamentary capacity.
This test is also supplemented by the ‘Golden Rule’ which stipulates that an assessment by a medical expert should be obtained where a solicitor, or other professional drafting the Will, has any doubts concerning testamentary capacity before a Will is prepared.
Evan Hughes had moderate dementia at the time the 2016 Will was prepared and his condition led to his solicitors requesting that his GP, Dr Pritchard, carry out an assessment of his testamentary capacity. Dr Pritchard’s contemporaneous report confirmed that “he had no issues with the capacity of Evan Hughes to change his will and would be happy to act as witness” and the 2016 Will was duly completed in accordance with Evan’s stated wishes.
Before the case came to Court, Dr Series was jointly instructed by the parties to provide a retrospective capacity report, taking into account Evan’s medical records and the witness statements of his GP and solicitor. Dr Series concluded that “it is more likely than not that [Evan] had testamentary capacity when he gave instructions for and executed his 2016 will”.
So far, so straightforward. But a twist emerged when Dr Pritchard provided evidence at the trial which cast serious doubt on Evan’s understanding of the implications of his revised instructions for the content of his 2016 Will. In particular, Dr Pritchard expressed concerns Evan “was under the apprehension that the proposed new will made only minor changes to the 2005 Will so as to substitute the sons of Elfred Hughes as the beneficiaries of the gift of land previously given to him”. In fact, the changes would result in half of Evan’s land being left to Gareth rather than to Elfred’s children. Dr Pritchard indicated that Evan had believed that only minor changes were being made.
In weighing Dr Pritchard’s evidence, the Court considered that both Dr Series’ report and Dr Pritchard’s 2017 report, on which the former was partly based, could not be wholly relied upon to determine the question of Evan’s testamentary capacity, especially as Dr Series had not had the opportunity of “seeing and hearing many witnesses who knew Evan Hughes over many years.”
As a result, the Judge held that Evan lacked testamentary capacity to make his second Will in 2016 on the basis that he did not appreciate the earlier understanding that he had come to with Elfred regarding the farmland or the subsequent promises he had made to Gwen and Stephen, nor did he understand the scale of the land involved. Equally, the Judge found that Evan lacked the capacity to comprehend the significance of the changes brought about by the 2016 Will.
Therefore, the claim of proprietary estoppel was upheld as Elfred would have relied on Evan’s earlier promises to leave him the land. Elfred had suffered a detriment on making that assumption, working very long hours on the farm at the expense of his family life. Consequently, even if the 2016 Will had been deemed valid, the land is subject to an equity in favour of Elfred’s estate.
The Judge dismissed the claims relating to knowledge and approval and undue influence, stating that the evidence showed that had Evan had sufficent capacity to make the 2016 Will then it was likely that he would have known and approved of its terms. The court also rejected the claim of undue influence.
In light of the outcome of Hughes v Pritchard, whilst the evidence provide by expert witnesses can play a significant role in settling a claim involving testamentary capacity, ultimately it is for the Court to determine how much weight it gives to it when taking into account all of the evidence available before arriving at its judgment.