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Hughes v Pritchard a Restatement of Principles (Part 1 of 2)

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider the impact of the Court of Appeal’s decision to overturn Hughes v Pritchard

What did the first instance decision of Hughes v Pritchard decide?

The first instance decision of Hughes v Pritchard was a decision by HHJ Jarman against the legal validity of a Will prepared by an experienced Solicitor who had also received a confirmatory capacity assessment from the testator’s GP. Classically, it was an unusual decision on its face as all necessary precautions had seemingly been taken to produce a valid last Will and testament. The apparent reason for this decision was the failure to question the deceased about his change from the terms of a previous Will and/or to recall its terms.
The first instance decision can be found at:

Our own earlier commentary on this decision can be found at:

In our earlier commentary we highlighted how this illustrated the risky nature of Will disputes because normally a Will prepared in these circumstances (where an experienced Solicitor and the testator’s GP had been involved) would be considered to have a cast-iron quality.

The Court of Appeal decision to overturn Hughes v Pritchard – a restatement of the general principles concerning Will validity

The relevant Court of Appeal decision can be found at:

As our commentary above about this Will contest or Will validity claim hints, the decision by the Court of Appeal in this instance does not come as much of a shock. Whilst not stated, there are likely to be public policy considerations at stake here; the consequences of this decision standing creating too much doubt in the field of Will dispute and Will contest claims if not a fear that an avalanche of claims might follow.

So the general principles are restated with perhaps a little more to deal with the original issue, which was the failure on the part of the Solicitor (and GP) to deal with the testator’s reasons for changing from the terms of his previous Will.

  1. Banks v Goodfellow

The test for capacity to make a Will put forward by Banks v Goodfellow continues to apply. Our earlier blog as follows refers:

The relevant extract from the Court of Appeal Judgment in Hughes states:

Both the trial and the appeal before us proceeded on the basis that the test for whether a testator has sufficient testamentary capacity to execute a will remains that set out in Banks v Goodfellow (1869-70) LR 5 QB 549 per Cockburn CJ at 549 which is as follows:

“It is essential . . . that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his senses of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
It was not suggested either by Miss Reed, on behalf of Gareth, or by Mr Troup, for Gwen and her sons, that that test does not survive the Mental Capacity Act 2005 and we did not hear any substantive submissions on that issue.

  1. On the basis of the Banks v Goodfellow test, in the circumstances of this case, therefore, there are three relevant questions to ask: (i) was the Deceased able to understand the nature of the act of making the 2016 Will and its effect? (ii) was the Deceased able to understand the extent of the property of which he was disposing? (iii) Was the Deceased able to comprehend and appreciate the claims to which he ought to give effect?

2. Burden of Proof

The very simple statement of the burden of proof put forward by Briggs J in Key v Key 2010 EWHC 408 (Ch) is also referred to and that capacity must be considered in light of the nature of the transaction and its complexity (Hoff v Atherton 2004):

It is also common ground that the burden of proof in relation to testamentary capacity is on the person propounding the will. Where the will is duly executed and appears rational on its face, the court will presume capacity, in which case, the evidential burden shifts to the objector to raise a real doubt as to capacity. If a real doubt is raised, the burden shifts back to the person propounding the will to establish capacity, nonetheless: Key v Key [2010]

EWHC 408 (Ch) per Briggs J (as he then was) at [97]. Further, despite the fact that expert evidence may be of great assistance, the issue as to testamentary capacity is a decision for the court: Key v Key at [98].

  1. Moreover, capacity must be considered in relation to the particular transaction and its nature and complexity: Hoff v Atherton [2004] EWCA Civ 1554 per Peter Gibson LJ at 35.


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