Hughes v Pritchard and Ors [2021] EWHC 1580 (Ch)

Hugh James clients successfully contest will for lack of capacity despite GP and expert opinion and enforce broken promise to leave farmland.

The High Court has recently handed down its decision in the case of Hughes v Pritchard and Ors [2021] EWHC 1580 (Ch) following a “hybrid trial” conducted in person and remotely.

This case involved the purported last will of Evan Hughes, deceased, which he made in 2016 as well as promises made by Evan to his son, Elfed Hughes, that he would leave him his farmland and on which Evan relied by dedicating his working life to farming his father’s land in conjunction with his own often working incredibly long hours and barely taking any time off.

Evan lived in North Wales and, at the time of his death, owned substantial assets including a bungalow, cottage, 79 acres of farmland known as Bwchanan and 58 acres of farmland known as Yr Efail.

Evan had three children: Elfed, Carys and Gareth.

In the late 1980s, Evan gifted plots of land to Gareth and Carys where they each built homes. Gareth later divorced and his home was transferred to his ex-wife as part of their divorce settlement in 2008, so Evan gifted him another house.

Evan gave the Bwchanan farmhouse, including 17 acres of farmland, to Elfed.

Evan was also an equal shareholder with his cousin, Ian, in a building company which had been started by their grandfather over 100 years earlier. The three children all worked for the company.

Ian retired in 1984 and selling and gifting his shares to the three children in equal shares.

Elfed also farmed his father’s farmland, looking after his sheep and cattle together with his own farm. He worked incredibly long hours on the farms in reliance upon the well-known understanding communicated by Evan to the family and wider community that, on Evan’s death, his shares in the company would be left to Gareth and Carys equally and the farmland would be left to his son Elfed.

Evan made wills in 1990 and 2005 reflecting this intention.

By 2014, Evan’s family started to notice a deterioration in his memory and changes in his behaviour including not recognising close friends and family, losing his temper for irrational reasons and confusing plots of land and livestock.

Shortly afterwards, in September 2015, Elfed tragically took his own life which, in echoes of Key v Key [2010] EWHC 408 (Ch) in which the testator in that case was held to have suffered cognitive impairment following the loss of her husband of 65 years, had a devastating impact on Evan and the wider family to the extent that, in December 2015, Evan scored just 47/100 on an “Addenbrooke’s test”, a test designed to assess cognitive ability. That score indicated a moderately severe degree of impairment and a CT scan carried out in April 2016 revealed evidence of an old stroke and damage to the blood vessels of the brain.

Despite this, in the March of 2016 Gareth took Evan to a local firm of solicitors to make a new will, the main changes from the 2005 will of which were to leave Yr Efail to Gareth and the remainder of the farmland to Elfed’s widow, Gwen, for life and, on her death, it would pass to her three sons, Stephen, Geraint and Sion equally.

Following the “Golden Rule” laid down in Kenward v Adams (1975), namely that, in the case of an elderly or seriously ill person who wishes to make a new will, the solicitor should seek the opinion of a medical expert regarding that person’s capacity to make a will, the solicitor who took instructions for Evan’s will sensibly decided to obtain an assessment of Evan’s capacity from his GP.

The GP saw Evan in June 2016 and determined that he had capacity to make changes to his will.

However, and in what was a key determining factor in the trial, the GP Dr Pritchard subsequently cast doubt on his own assessment as he contended that he had been “misled” as to the changes in the will. He stated that he was led to believe that the 2016 will made only minor changes to the 2005 will essentially replacing Elfed with his three sons and, crucially, stated that this was also Evan’s belief, a statement supported by a number of witnesses called on behalf of Gwen who, by reason of Gareth’s claim to propound in favour of the 2016 will, was a defendant in the claim alongside Carys and her son, Stephen, himself on behalf of him and his brothers, was the claimant.

This, in turn, undermined the single joint expert opinion of Dr Hugh Series which had been ordered by the court and in which Dr Series had also determined Evan to have capacity.

As such, HHJ Jarman QC, sitting as a High Court Judge was bound to set aside the 2016 will on the basis of lack of testamentary capacity.

Despite having recently celebrated its 150th anniversary, the case of Banks v Goodfellow (1869-70) LR 5 QB 549 is still the leading authority on testamentary capacity. That case confirmed that for a will to be valid:

“It is essential …that a testator shall understand the nature ofthe actand 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 sense 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.”

With reference to this case and what has since become known as the Banks v Goodfellow test, HHJ Jarman QC gave three reasons in support of his finding that Evan lacked capacity:

1. he did not have the capacity to appreciate the understanding that he had had with his Elfed over many years during which the latter had looked after his stock and land for no financial reward, or the promises made to Gwen and his grandsons thereafter;
2. he lacked capacity to understand the extent of Yr Efail; and
3. he lacked the capacity to understand that the changes implemented by the 2016 will were more than just minor changes to the 2005 will.

The Judge went one step further, however, finding that, even if the 2016 will was valid, in any event, the promises made by Evan to Elfed that he would leave him Yr Efail, and on which Elfed had relied to his noted detriment by working incredibly long hours, purchasing land adjoining his father’s, paying for the vast majority of expenses including staff wages, husbandry and machinery meant that Yr Efail should nevertheless pass to Elfed’s estate under the doctrine of proprietary estoppel. In doing so, he cited a number of leading cases including Davies v Davies [2016] EWCA Civ 463, another case in which this firm acted for the successful party.

You can read the Hughes decision on BAILLI in English here and Welsh here.