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Testamentary capacity: How much must a testator recall about an earlier will?

Date Added 08.06.22

Lack of testamentary capacity is one of the grounds upon which a disappointed beneficiary may seek to challenge a deceased’s Will. The recent case of Hughes v Pritchard 2022 EWCA Civ 386 highlighted a number of important issues concerning the level of recall required by a testator in respect of their movement away from the terms of an earlier Will, together with the weight attributed to the evidence of an experienced practitioner and medical expert, when it came to assessing the testator’ testamentary capacity to amend his Will.

The case surrounded the estate of Mr. Evan Hughes (“the Deceased”) who died in March 2017. He had three children, namely Gareth, Carys and Elfred. At the time of his death, Mr. Hughes owned a farming business, together with a substantial amount of land. Mr. Hughes’ last Will was made in July 2016 (“the 2016 Will”). At the time of making this Will, Mr. Hughes had dementia and was also grieving for his son Elfred, who had taken his own life a few months earlier.

Under the 2016 Will, Mr. Hughes’ farmland was divided equally between Gareth and the beneficiaries of Elfred’s estate. Under an earlier Will made by Mr. Hughes in 2005 (“the 2005 Will”), he left all of his farmland to Elfred.

Elfred’s widow and sons brought a claim that the 2016 Will was invalid for lack of testamentary capacity, relying upon the earlier 2005 Will.

At first instance, the trial judge found that the Deceased did not have testamentary capacity to execute a valid Will in 2016. This was despite a positive capacity assessment being undertaken by the Deceased’s GP at the time of the Will instructions, together with detailed attendance note records kept by the instructing solicitor. The trial judge at first instance, instead preferred evidence that the Deceased’s’ memory had been deteriorating over time and that he believed he was only making simple changes to his 2016 Will.

The Court of Appeal overturned the first instance decision, finding that ‘testamentary capacity does not require a testator to recall the terms of a past will they have made, or the reasons why it provided as it did, as long as they are capable of accessing the information if needed, and of understanding it once reminded of it’. The court confirmed that testamentary capacity has to be considered in relation to the complexity of the dispositions proposed and the potential to understand. The terms of the 2016 Will were discussed between the Deceased and his solicitor. The Deceased was able to recite those terms to the GP assessing capacity and the Deceased approved the terms. The 2016 Will, therefore, appeared rational on its face and there was no evidence to suggest that the Deceased had forgotten about the more favourable terms to Elfred under the 2005 Will, therefore the 2016 Will was held valid.

This case highlights the importance of practitioners following ‘The Golden Rule’ in respect of the elderly and infirm, where testamentary capacity may be called into question. The solicitor who took Mr. Hughes’ 2016 Will instructions, had completed detailed attendance note records, confirming Mr. Hughes’ instructions and acknowledging that he wanted to change his 2005 Will. In view of the concerns over Mr. Hughes’ capacity, she sensibly sought a testamentary capacity assessment from Mr. Hughes’ GP, before the Deceased executed the same.

Whilst the court confirmed that positive evidence of a contemporaneous testamentary capacity assessment is not definitive evidence of a finding that the testator’s Will is valid, such evidence should be given considerable weight when assessing whether the testator had testamentary capacity to execute a valid Will.

If you believe that there may be a valid reason to contest a Will…Talk to Tollers on 01604 258558. Our experienced contentious probate solicitors will be happy to discuss things further.

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