CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – HUGHES V PRITCHARD A RESTATEMENT OF PRINCIPLES (PART 2 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
THIS IS THE SECOND OF OUR TWO PART ARTICLE ABOUT THE RECENT HUGHES DECISION BY THE COURT OF APPEAL
“Presumption” that a Will prepared by an experienced lawyer is valid?
Whilst overturning HHJ Jarman’s decision seemingly in part because not enough weight had been given to the fact that the lawyer preparing it had taken a considerable amount of care in so-doing, their Lordships are hesitant to say that this must amount to a “presumption” the Will is valid. The case of Hawes v Burgess 2013 EWCA Civ 74 is referred to as creating a strong indication (but not a presumption) that a Will prepared by an experienced lawyer is likely to be valid. The Court of Appeal put the position as follows:
In my judgment, Miss Reed was right not to suggest in her oral submissions that Mummery LJ’s dicta in Hawes v Burgess amounts to a true presumption. It seems to me to be no more than a statement of the obvious. Where the will is explicable and rational on its face, the conclusion reached by an independent lawyer who is aware of the relevant surrounding circumstances, has taken instructions for the will and produced a draft, has met with the testator, is fully aware of the requirements of the law in relation to testamentary capacity and has discussed the draft and read it over to the testator, is likely to be of considerable importance when determining whether a testator has testamentary capacity. It is a very strong thing, as Mummery LJ described it, to find that such a testator was not mentally capable of making a will. It seems to me that Mummery LJ’s use of “presumption” was no more than a means of expressing the considerable importance of such evidence particularly in comparison with evidence from a medical expert who did not meet the testator and arrived at his conclusions on the basis of the papers only.
- I do not suggest that the evidence of such a solicitor is definitive and nor did Miss Reed. Although it is of very considerable importance and should be given due weight,
4. Contemporaneous medical evidence affirming capacity is likely to carry considerable weight
This is the so-called “golden rule” in Will dispute and Will contest cases; a Solicitor making the Will of an aged testator (or one who has been seriously ill), should ensure that it is
witnessed and approved by a medical practitioner. Our earlier blog as follows provides some detail for the newcomer to this area:
Nevertheless whilst such actions will carry a great deal of weight (in favour of the legal validity of the Will in dispute), it should not operate (again) as a presumption the Will must be valid. The Court of Appeal in Hughes put the argument as follows:
84. It is well known that a rule of practice has long been established that when making the will of an aged testator or a testator who has suffered a serious illness, it should be witnessed and approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his findings. That has become known as the “golden rule” which was explained in Kenward v Adams (Times Law Reports, 29 November 1975).
- The Court of Appeal considered the status of such medical assessment in Sharp v Adam. May LJ who gave the judgment of the court, stated as follows, at 
“. . . [Counsel] on behalf of the Appellants, came quite close to submitting that such meticulous compliance with the golden rule should in principle be determinative. In our view, this would go too far. The opinion of a general practitioner, unimpeachable in itself and supported by that of one or more solicitors, may nevertheless very occasionally be shown by other evidence to be wrong. The golden rule is a rule of solicitors’ good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule.”
Briggs J also observed in Key v Key at  that compliance with the golden rule does not operate as a “touchstone” of the validity of the will, nor does non-compliance demonstrate its invalidity.
5. A failure on the part of the Will-writer to question the Testator’s reasons for overturning a previous Will does not necessarily lead to any question-mark over his/her capacity to make one
Their Lordships were careful to suggest that whilst this might be a useful tool (or helpful safeguard) to determine the testator’s capacity to make a Will, it should not be elevated to a requirement on the part of the draft Solicitor or medical practitioner (who has been instructed to report on the testator’s capacity). In particular they point out that a Will may be valid:
however, capricious that choice may be and however ungrateful or unfair the terms may be to those whose expectations of testamentary benefit are disappointed. Of course, if the terms are inexplicable or irrational, it is likely that there will be serious doubt as to capacity.
The latter remark however is interesting, as it more than suggests that where on questioning the terms of the Will are inexplicable or irrational there is more likely to be a serious doubt as to capacity.
6. The testator has to be capable of understanding rather than actually recalling matters relevant to the question of his capacity to make the Will
The fact that the testator may not know, for example, the precise nature and extent of his/her estate does not mean he/she is incapable of making a Will. What is required is that he/she must be capable of understanding. This, I should add, seems designed to cater for the post death inquisition that marks Will dispute and Will contest claims and that actual knowledge of some aspects of the testator’s decision-making after the event are going to be difficult to prove. It seems highly unlikely that a testator who was incapable of recalling the extent and nature of his/her estate in broad terms and/or who was unable to identify his/her own children for example, could be deemed capable of making a Will.
Their Lordships conclusion about these matters seems to have been inspired by the earlier Court of Appeal decision in Simon v Byfield:
This conclusion is consistent with Lewison LJ’s approach in Simon v Byford  EWCA Civ 280. That appeal, which was also concerned with whether a testatrix who executed a will at or immediately after her 88th birthday party, had testamentary capacity and knew and approved the contents of her will. The judge had answered both questions in the affirmative and Lewison LJ, with whom McFarlane and Sullivan LJJ agreed, dismissed the appeal.
- In relation to testamentary capacity, Lewison LJ, quoting Peter Gibson LJ in Hoff v Atherton  EWCA Civ 1554,  WTLR 89, made clear that capacity is concerned with the potential to understand. It is not a test of memory or a requirement for actual recollection ( and )
We started this two-part blog by referring to our earlier commentary on the first instance decision in Hughes and how it highlighted the risky nature of this area of the law. The Court of Appeal’s conclusions do not change this. Their Lordships did not close down the litigation in Hughes in consequence of their decision but opened up a new front in relation to the subsidiary claim for “Proprietary Estoppel” which was referred back to a first instance Court to consider “detriment” and remedy.
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