Challenging Wills: lack of testamentary capacity

We are often asked by clients to advise on whether a Will can be challenged as being invalid. The six grounds upon which this can be done are:

1. Lack of testamentary capacity
2. Lack of knowledge and approval
3. Undue influence
4. Forgery
5. Lack of due execution
6. Fraudulent calumny

In this article we look at a recent case involving testamentary capacity.

Recent case law

The recent case of Hughes v Pritchard & Ors [2021] concerned a challenge to the deceased’s 2016 Will, which he executed whilst suffering from “moderately severe dementia” and was also mourning the recent death of his son. The deceased died the following year.

This case also raised issues of undue influence, but for the purpose of this article we will focus upon the issue of capacity.

Background

The deceased had two sons and a daughter, and owned substantial acres of farmland and shares within a company. His son, Elfed, worked long hours to help with the farming, sheep and cattle and the deceased had made his intentions clear that Elfed would be left the farmland, whilst his other children, Gareth and Carys, would receive equal shares in the company. His earlier Will reflected this intention.

Elfed sadly died in September 2015. In the following July, the deceased executed a new Will which provided that the farmland would now be left to his son Gareth. The claim brought by Carys, Elfed’s widow and eldest son challenged the Will on the basis that;

• (i) the Will is invalid due to lack of testamentary capacity; or alternatively
• (ii) that the farmland should instead belong in equity to Elfed’s Estate.

Circumstances around the execution of the Will

In 2014 the deceased’s family noticed lapses in his memory and changes in his behaviour. In September 2015 his son Elfed became depressed and took his own life, which had an understandably devastating effect on the family. Shortly after, the deceased saw a consultant who confirmed he had a moderately severe degree of mental impairment.

In March 2016 the deceased attended solicitors with his son Gareth to create a new Will. The solicitor described the deceased as ‘distant’ and could not recall whether the deceased or Gareth communicated the instructions. Several meetings followed during which the solicitor took detailed attendance notes and the instructions remained consistent. In May 2016 the solicitors also arranged for a doctor, who was provided with draft copies of the Will, to conduct a capacity assessment of the deceased. The doctor recorded that during the assessment the deceased was calm, fully orientated and could outline the contents of the draft Will without much prompting, and so confirmed by letter to the solicitors that the deceased had capacity to change his Will.

Between this medical assessment and the deceased executing the Will in July 2016 (some four months later), an inquest was held into the death of the deceased’s son Elfed. The deceased’s daughter recalled that when she communicated the inquest outcome to the deceased he was confused, and told her he had seen Elfed at the window. After the Will was executed, the deceased was referred to a community psychiatric nurse who concluded that he had mixed type dementia which was rapidly deteriorating.

Between August and October 2016 Gareth, his wife and the deceased had meetings with a solicitor, during which the deceased gave instructions to transfer his shares in the company to Gareth. The solicitor’s account was that he had seen the medical assessment from May 2016, but no other, but that the deceased had given clear instructions and actively participated in the discussions. The solicitor advised that a further capacity assessment was conducted, but the shares were transferred without this safeguard. Concerns about this were raised by various persons, including the deceased’s doctor.

Judgment

The judge concluded that the Will was invalid as the deceased lacked testamentary capacity. His reasons, in summary, were as follows:

• The deceased did not have the capacity to appreciate the understanding that he had with his son Elfed over many years, or the promises he had made to his daughter-in-law.
• The deceased lacked capacity to understand the extent of the property. For example, he confused a singular field as being the property despite the property in fact being 58 acres.
• The deceased lacked the capacity to understand that the changes implemented by the 2016 will went beyond tidying up his previous wishes following the death of his son Elfed.

The judge also found that, had the Will been valid, the farmland should have been transferred outright to Elfed’s Estate.

Commentary

Despite the solicitor in this instance having followed best practice in obtaining medical opinion on capacity and taking detailed file notes of their meetings with the deceased (often referred to as the Golden Rule), the court still took the view that the deceased did not have testamentary capacity. One of the main factors was that the doctor, in his witness evidence, said that he had not appreciated the significant difference between the 2016 Will and the earlier wills.

This case has highlighted the importance of the medical assessment taking place as close to the execution of the Will as possible, and the need to ensure that the medical professional understands the context around the proposed new Will including the terms of any existing Wills or expression of wishes.

Whether a Will can be challenged always comes down to the facts within each particular case, which is why witness accounts are often crucial should the case progress to trial.

If you need advice in respect of disputes regarding Wills and estates please contact our contentious probate team.