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  • 29 October 2021 Testamentary Capacity: the dangers of making wills late in the day by Charlie Kassell

    The recent judgment in the case of Hughes v Pritchard [2021] EWHC 1580 has provided an interesting viewpoint on the subjects of testamentary capacity, ‘golden-rule’ assessments of capacity (as set down in Kenward v Adams in 1975), and expert medical evidence.

    Testamentary capacity has long been an issue for clients wanting to make new wills or codicils and can often become the subject of litigation between happy and unhappy beneficiaries.

    The long-established test for testamentary capacity in disputes arising after the testator’s death is that set down in Banks v Goodfellow in 1870. For a testator to be judged to have had testamentary capacity, the court must be satisfied that he:

    1) Understood the nature of making a will and its effects;

    2) Understood the extent of the property of which he is disposing;

    3) Was able to comprehend and appreciate the claims to which he ought to give effect; and

    4) Had no disorder of mind that poisoned his affections, perverted his sense of right or prevented the exercise of his natural faculties in disposing of his

    property.

    One might assume that the combined weight of opinions of a solicitor, GP, and single joint expert to the effect that the testator did have capacity would be sufficient to defeat any challenges to the contrary. As this recent case shows, however, that is not necessarily a safe assumption.

    The facts of the case were as follows: -

    The deceased (Evan Hughes) had lived all his life on Anglesey, owning significant farmland as well as being an equal shareholder with his cousin Ian in a building company. Evan had three children: Elfed, Carys, and Gareth. Elfed had always worked on the farmland, while Gareth and Carys had been involved with the building company. It had always been well-known (within the family and the wider community) that Evan would leave the farmland to Elfed and the company to Carys and Gareth equally. He made a will to this effect in 1990 and a further will in 2005 (following his second divorce) which repeated these provisions.

    Two key changes in circumstance had occurred by 2014. The building company had begun losing money, and Evan’s family had started to notice in him behavioural changes and lapses of memory. Notably, Evan had failed to recognise his cousin Ian in 2014 and had confused his two pieces of farmland (Yr Efail and Bwchanan) in conversation with his grandson in March 2016.

    Elfed Hughes became depressed and took his own life in September 2015, and his death had a devastating effect on the family, especially on his father Evan.

    Evan was referred by his GP (Dr Pritchard) to a psychiatrist in December 2015, and scored 47/100 on an Addenbrooke’s test, indicating a moderately severe degree of impairment. Further, a CT scan was carried out in April 2016 which revealed evidence of an old stroke and damage to the brain. Despite this, Evan was astute enough to realise it would be prudent to change his will following Elfed’s death. The will was changed to the effect that Yr Efail would now go to Gareth, and the remainder of the farmland (Bwchanan) to Elfed’s wife for life and then to the children she shared with Elfed. This was a significant change in intention as Yr Efail represented 58 acres of farmland out of a total of 137.

    The solicitor taking instructions (Manon Roberts) spoke to senior colleagues who advised she obtain a capacity assessment before advising Evan to execute the will. Further meetings took place between Manon and Evan, at which detailed attendance notes were taken and the instructions remained consistent.

    A capacity assessment was carried out by Dr Pritchard, who asked Evan to outline the contents of the new will. Evan was able to do so with very little prompting and appeared to fully understand the purpose of the meeting. Dr Pritchard confirmed he had no issues with Evan’s capacity and that he was willing to act as witness.

    The new will was executed on 7 July 2016 and witnessed by Dr Pritchard alongside Manon Roberts.

    Evan’s condition deteriorated rapidly from this point until his death in May 2017. Evan was referred to a psychiatrist less than two weeks after signing his 2016 will, by which point his Addenbrooke’s score had deteriorated further.

    The 2016 will was challenged by Elfed’s widow (Gwen), her children (Geraint, Stephen, and Sion), and Carys (Elfed and Gareth’s sister) on four grounds:

    1) Evan had lacked capacity under Banks v Goodfellow to make the will;

    2) Evan had not known and approved of the contents of the will;

    3) Gareth had exerted undue influence over Evan to make the will; and

    4) Elfed’s estate claimed that proprietary estoppel would defeat the gift in relation to Yr Efail.

    A single joint expert, Dr Series, was appointed to deal with the primary issue of capacity. The single joint expert relied on witness statements provided by Manon Roberts and Dr Pritchard, each of Evan’s three wills, interim estate accounts and the pleadings in the proceedings, as well as Evan’s medical records and his own expertise in old age psychiatry.

    Dr Series noted that Evan’s score on the Addenbrooke’s test, suggesting moderate impairment, led him to the conclusion that there was doubt as to whether testamentary capacity was retained, and further detailed examination of the evidence would be necessary. He went on to say that the combined evidence of Manon Roberts and Dr Pritchard suggested to him that “it is more likely than not that [Evan Hughes] had testamentary capacity when he gave instructions for and then executed his 2016 will.”

    The judge disagreed, deciding that “on the balance of probabilities, it is likely that he did not have capacity as at 7 July 2016 in three particulars, any one of which is sufficient to vitiate the 2016 will. If these particulars are taken together, that likelihood is strengthened.”

    The particulars were: -

    1) Evan lacked the capacity to appreciate the understanding that he had had with Elfed over many years (ie working the farm for no financial reward in the knowledge he would be inheriting the farmland – the estoppel claim);

    2) Evan lacked capacity to understand the extent of Yr Efail (the second limb of Banks v Goodfellow); and

    3) Evan lacked capacity to understand that the changes made by the 2016 will were more than just those necessary to “neaten up” the will after Elfed’s death.

    The 2016 will was therefore held to be invalid on the basis of lack of testamentary capacity.

    The judge, importantly, relied on evidence from witnesses who had known Evan Hughes for many years - evidence Dr Series had not had access to. Notably, the witness statement of Evan’s accountant Richard Williams stated that Evan had repeated on several occasions in 2015 and 2016 (ie in the immediate run up to the new will instructions being given) that it remained his intention that the farmland go to Elfed’s family including Elfed’s son and his grandson Geraint who had been working the land for several years (and for whom Richard Williams also did the accounts).

    The judge assessed Evan’s capacity with the benefit of the more recent medical developments (ie since the assessment of capacity by Dr Pritchard). The judge took the view that Evan’s condition had begun to deteriorate significantly week to week in the period between giving the initial instructions and signing the 2016 will (earlier than had been suggested by the psychiatrist at the time). Weight was attached to the fact that at no point did Evan give any reason for departing from his original intention that the farmland go to Elfed and the company to Carys and Gareth (other than the “neatening up” following Elfed’s death).

    Other Claims

    Considering these claims obiter, the judge decided there was not enough evidence to suggest Evan had not known and understood the contents of his will. Nor was there enough evidence to make out the case of undue influence against Gareth.

    Interestingly, the judge does say that had he found, to the contrary, that Evan had had testamentary capacity when making and executing his 2016 will, there would have been a successful estoppel argument raised by Elfed’s estate in relation to Yr Efail.

    Analysis

    The judgment leads to two interesting discussions. First, the limitations of ‘golden-rule’ assessments of capacity carried out at the time the will was executed, and secondly the limitations of expert (medical) evidence at trial.

    On the first point, the judgment shows that ‘golden-rule’ assessments of capacity are far from infallible. It shows the importance of the GP being fully across the issues before the assessment. While Dr Pritchard had had a general conversation with Evan about the contents of his new will, he had not been briefed by Manon Roberts as to the requirements of Banks v Goodfellow and never discussed the key change (being Gareth inheriting Yr Efail) specifically, and it is unclear whether Dr Pritchard was even aware of this change at the time of the assessment.

    Had Dr Pritchard specifically asked Evan to confirm that he understood he was making a significant change to his will, to the effect that Gareth would be inheriting Yr Efail rather than Elfed’s family, the judge would have been far less inclined to make the judgment he did.

    This leads to the second point that expert evidence is also not beyond challenge. In this case, the expert was relying largely on the assessment of Dr Pritchard. Everything else flows from this: Manon Roberts’ evidence relied on Dr Pritchard’s assessment, which was then in turn relied upon by Dr Series. The expert evidence, therefore, was based on flawed or at the very best uncertain material, and as a result the judge felt able to overrule the expert in the light of additional evidence.

    It is essential, therefore, when making a referral for an assessment of testamentary capacity, to make sure the GP (or whoever is carrying out the assessment) has a full understanding of the changes being made to the will and has in mind the four limbs of Banks v Goodfellow.

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