Hughes v Pritchard [2022] EWCA Civ 386

The Court of Appeal considered whether an elderly testator with moderately severe dementia had testamentary capacity to execute a 2016 will changing bequests following his son's suicide. The Court allowed the appeal, finding the judge had given insufficient weight to the drafting solicitor's and GP's evidence.

Facts

The Deceased, Evan Richard Hughes, died on 7 March 2017 aged 84. He had three children: Gareth, Carys, and Elfed (who committed suicide on 18 September 2015). The Deceased owned substantial assets including farmland known as ‘Yr Efail’ (58 acres), another farm ‘Bwchanan’ (79 acres), a bungalow, a cottage, livestock, and approximately £290,000 in cash. He was also a director and shareholder in a family building company which by 2016 was being dissolved.

Elfed had worked on his father’s farm for some 38 years, looking after the Deceased’s stock without financial reward, and built up his own herd and flock. There was a longstanding understanding that Elfed would inherit the farmland.

The 2005 Will left the farmland to Elfed and the company shares to Gareth and Carys equally. Following Elfed’s death, the Deceased executed a new will on 7 July 2016 (the ‘2016 Will’), which left Yr Efail to Gareth instead, with the remainder of the farmland held on trust for Elfed’s widow Gwen for life, remainder to her three sons.

From 2014, the Deceased experienced memory problems. In December 2015, he scored 47/100 on an Addenbrooke’s test indicating moderately severe cognitive impairment, and a CT scan in April 2016 showed evidence of an old stroke and vascular dementia.

The drafting solicitor, Ms Manon Roberts, took detailed instructions over several meetings and, having concerns about capacity, arranged for the Deceased’s GP, Dr Pritchard, to assess him. Dr Pritchard concluded on 14 June 2016 that the Deceased had capacity. Ms Roberts recorded on 7 July 2016 that she had ‘no issues whatsoever’ with capacity. Dr Pritchard later gave evidence that he had believed the changes were minor (substituting Elfed’s sons for Elfed) and had not appreciated that Yr Efail was being left to Gareth.

Issues

The principal issues were:

• Whether the Deceased had testamentary capacity under the Banks v Goodfellow test when the 2016 Will was executed;
• The proper weight to be given to the drafting solicitor’s evidence and the GP’s capacity assessment;
• Whether a proprietary estoppel arose in favour of Elfed’s estate in respect of Yr Efail.

Arguments

Appellant (Gareth)

Miss Reed QC submitted that the judge had: ignored the strong presumption from Hawes v Burgess favouring wills drafted by experienced independent lawyers; misdirected himself in treating the 2016 Will as a ‘more complex’ transaction; wrongly discounted Dr Pritchard’s evidence because he later said he would have asked different questions; wrongly disregarded Ms Roberts’ evidence; and reached a conclusion not reasonably open to him on the evidence.

Respondents (Gwen and Stephen)

Mr Troup submitted that both Ms Roberts and Dr Pritchard had conducted limited assessments because neither had explored the changes from the 2005 Will with the Deceased, relying on Re Simpson (Templeman J) that earlier wills should be considered and, if appropriate, discussed with the testator.

Judgment

The Court of Appeal (Asplin LJ, with Moylan and Elisabeth Laing LJJ agreeing) allowed the appeal on testamentary capacity.

Testamentary Capacity Principles

The test in Banks v Goodfellow applied. The burden of proof lies on the propounder, but where a will appears rational and is duly executed, capacity is presumed unless a real doubt is raised. Capacity must be considered in relation to the particular transaction’s nature and complexity (Hoff v Atherton).

The Solicitor’s Evidence (Hawes v Burgess)

Asplin LJ clarified that Mummery LJ’s remarks in Hawes v Burgess did not create a true presumption but expressed the considerable importance of evidence from an experienced independent lawyer who had taken instructions and overseen execution. Such evidence, while not definitive, should be given due weight.

The Golden Rule

The Court reaffirmed that compliance with the golden rule is a matter of good practice, not a rule of law giving conclusive status to such evidence (Sharp v Adam; Key v Key).

Duty to Discuss Earlier Will

The Court held it is not a requirement that either the drafting solicitor or medical practitioner question the testator about changes from a previous will or require reasons for those changes. A testator is entitled to leave his estate as he chooses, however capricious, subject to the Inheritance (Provision for Family and Dependants) Act 1975. Following Simon v Byford, testamentary capacity does not require actual recollection of a previous will, only the capacity to access and understand the information if reminded.

Assessment of the Judge’s Reasoning

The Court found the judge had effectively given no weight to Dr Pritchard’s or Ms Roberts’ assessments of capacity on 7 July 2016, despite stating he attached some weight to them. The judge’s reasons for downgrading Ms Roberts’ evidence (her lack of medical qualifications, reliance on Dr Pritchard, and failure to ask about the Yr Efail change) were not justified.

The judge had wrongly focused on whether the Deceased understood the change in relation to Yr Efail, rather than applying the Banks v Goodfellow test to the will as a whole. The 2016 Will was not materially more complex than its predecessor. The judge also improperly imported notions of ‘fairness’ and a need to justify changes in testamentary dispositions.

The judge’s second reason (inability to understand the extent of Yr Efail) ignored Dr Pritchard’s oral evidence that the Deceased had identified Yr Efail unprompted when shown the plan. The third reason (inability to understand that the changes were more than ‘neatening up’) was flawed for the reasons given.

Giving proper weight to the evidence of Ms Roberts and Dr Pritchard, the judge’s conclusion was not open to him. The order that the 2016 Will was invalid was set aside.

Parker v Felgate

Permission to raise this new point on appeal was refused, as the evidence below would have been different had the point been pleaded.

Proprietary Estoppel

The representations and reliance were established, but the judge’s reasoning on detriment was superficial, with insufficient consideration of benefits enjoyed by Elfed through the symbiotic arrangement, no proper assessment of unconscionability, and no consideration of the effect of Elfed’s death on the remedy. The questions of detriment and remedy were remitted to the High Court.

Implications

The judgment provides important guidance on the weight to be given to a drafting solicitor’s evidence and a medical practitioner’s capacity assessment in testamentary capacity cases. Key points include:

• The ‘presumption’ described in Hawes v Burgess is not a true presumption but reflects the considerable importance of evidence from an experienced independent lawyer who has met the testator and taken instructions.
• Neither the drafting solicitor nor the assessing medical practitioner is required to discuss the terms of a previous will with the testator or to ask for reasons for changes; although prudent, this is not a legal requirement and whether it is appropriate depends on the circumstances.
• A testator does not have to justify changes in testamentary dispositions to prove capacity. Freedom of testation means a testator can make a will even if its terms are hurtful, ungrateful or unfair to those with legitimate expectations.
• Testamentary capacity does not require actual recollection of a previous will’s terms, only the capacity to access and understand that information if reminded.
• Capacity is assessed in relation to the particular transaction. A court should not focus narrowly on a single disposition but consider the will as a whole.
• Appellate courts remain wary of interfering with factual evaluations on capacity, but will do so where the judge’s reasoning demonstrably misapplies the legal test or gives inappropriate weight to relevant evidence.

The decision matters to practitioners drafting wills for elderly or potentially vulnerable testators, to medical practitioners conducting capacity assessments, and to those disputing or propounding wills. It reinforces that freedom of testation remains central and that courts should not too readily set aside wills prepared by experienced independent lawyers. The proprietary estoppel aspect was not finally resolved, with questions of detriment, unconscionability and the effect of the representee’s death left open for the High Court.

Verdict: Appeal allowed on testamentary capacity: the judge’s order that the 2016 Will was invalid for want of testamentary capacity was set aside, and the 2016 Will held valid. The proprietary estoppel claim was remitted to the High Court for determination of the issues of detriment and remedy only.

Source: Hughes v Pritchard [2022] EWCA Civ 386