Welsh farmer's will overturned despite expert report asserting capacity

Monday, 21 June 2021
The final will of a Welsh farmer has been overturned on the basis of lack of testamentary capacity, despite a medical assessment and an expert report suggesting he had capacity when he signed it.
will handwriting

Evan Hughes died in March 2017 aged 84, having executed his third and final will on 7 July 2016. At the time, he was suffering from moderately severe dementia and was also grieving for his son Elfed, who had died some months earlier.

Evan owned a considerable amount of land as well as a family building business. Among other provisions, his will left 56 acres of farmland to his surviving son Gareth. When the will was submitted for probate, this section was challenged by Evan’s daughter Carys and Elfed’s widow Gwen and son Stephen. They claimed that Evan had promised this particular land to Elfed, who had worked on the farm for many years. Two previous wills made by Evan Hughes in 1990 and 2005 had in fact explicitly left this land to Elfed.

Gwen and Stephen thus contested probate of the 2016 will, claiming that, first, Evan had not had capacity to make it and, second, that they had a proprietary estoppel claim against the land because of Evan’s promises to his late son.

The mental capacity challenge had to overcome the hurdle that the solicitor who took instructions for the 2016 will had followed the 'golden rule' and asked Evan’s GP Harri Pritchard for an assessment of his capacity. This assessment led Dr Pritchard to determine that Evan did have capacity to change his will. A single joint expert opinion given to the England and Wales High Court by Dr Hugh Series, based on records and witness statements from Dr Pritchard and the solicitor who drafted the will, agreed that Evan had capacity at the time of writing.

However, at the trial, Dr Pritchard said he had been misled into thinking that the 2016 will made only minor changes to its predecessor and also noted that the testator also believed this: a crucial point, according to law firm Hugh James, which acted for Gwen and Stephen. This statement was supported by several other witnesses and convinced the judge, Jarman HHJ, that the will had to be set aside on capacity grounds, although he ruled out any question of undue influence.

Jarman also upheld Gwen and Stephen’s claim of proprietary estoppel on the farmland. He agreed that Elfed had relied on his father's promises to leave him the land, to Elfed's significant detriment when those promises were broken by the terms of the 2016 will. Even if that will were supposed to be valid, said Jarman, the land is nevertheless subject to an equity in favour of Elfed’s estate (Hughes v Pritchard, 2021 EWHC 1580 Ch).


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