Hughes v Pritchard – back to basics in Will dispute and Will contest claims where the primary issue is testamentary capacity
Willclaim Solicitors, who specialise in handling Will dispute and Will contest claims under no win no fee agreements, consider the impact of the recent Court of Appeal decision in Hughes v Pritchard
The decision – Hughes v Pritchard – the relevant decision can be found at:
This was mainly a decision about the legal testamentary capacity of an elderly testator and his disposal of his farm by the terms of his last Will. The case at first instance was a little curious given the involvement of Solicitors in the drafting and execution of said Will and their instruction of the testator’s GP to provide a confirmatory report on capacity, which of course he did. Surprisingly at first instance the Judge HHJ Jarman QC, found against the Will on the basis the testator didn’t have legal testamentary capacity. He had not explained the basis of his decision not to leave the bulk of his farmland to the son who had been farming it most of his life. It was this decision which was overturned and the Will in question upheld by the Court of Appeal. We reported on this in our earlier blog as follows:
Unfortunately, the finding by the Court of Appeal to uphold the Will is not the last word on the matter – there is a continuing claim in Proprietary Estoppel by the disappointed child. This is just another example of the risks and costs associated with litigation in this complex area.
A restatement of principles – Hughes v Pritchard
The legal test of capacity
The legal test for testamentary capacity remains Banks v Goodfellow:
General principles – Testamentary Capacity
- 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.
The burden of proof
It was common ground that the burden of proof in relation to testamentary capacity was on the person propounding the Will. However, where the Will appeared rational on its face and was duly executed, the court will presume capacity in which case the burden falls on the objector to raise a real doubt about capacity. If such is raised then the burden falls back on the person propounding the Will to establish capacity.
Parker v Felgate
A testator who lacks capacity at the time the Will is executed may nevertheless make a valid Will if he had capacity at the time instructions were provided to make it, provided when he executes it, he understands that he is executing a Will for which he has given instructions.
In summary, therefore, a testator who lacks testamentary capacity at the time of the execution of the will may make a valid will, nevertheless, if: he or she had testamentary capacity at the time when he/she gave instructions to a solicitor for the preparation of the will; the will is prepared so as to give effect to the instructions; the will continues to reflect the testator’s intentions; and at the time of execution, the testator is capable of understanding, and does understand, that he is executing a will for which he has given instructions. See Perrins v Holland at -  and  – .
Hawes v Burgess – “presumption” in favour of a Will drafted by an experienced lawyer
This is not a true legal presumption but rather a statement of fact; if an experienced lawyer has reached the conclusion that a testator has capacity having drafted and read it over to him, then this is strongly indicative of capacity on the part of the testator. As per the Court of Appeal:
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.
The Golden Rule – the status of medical evidence
The Court of Appeal were “impressed” by the effort on the part of the Solicitor who drafted the Will in issue, to obtain evidence from the testator’s treating GP as to his capacity and who also witnessed the Will. However, it was restated that this doesn’t automatically mean the Will is valid; it is however a very strong indicator that it might be. For example:
The Golden Rule – the status of medical evidence
- 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.
If you believe that you might have grounds to contest a will [https://www.willclaim.com/claim-types/contesting-a-will-after-probate/], it’s important to get in touch with a professional who can help you through this challenging time and support you legally. At Will Claim Solicitors, we specialise in assisting our clients in contesting wills for estates most commonly based in England and Wales. Our expert solicitors are on hand to support you on a ‘no win, no fee’ basis, so get in touch to arrange your free claim assessment here [https://www.willclaim.com/free-claim-assessment].