The Golden Rule, Impugned? Hughes v Pritchard
If you have been notified about a challenge to a will relating to an estate in which you have an interest, you may wonder whether you can defend the contested will.
A recent case, Hughes v Pritchard (2022), involved a validity challenge to a will which was based on a lack of testamentary capacity. This case raised many important issues, including the weight given to the views of solicitors and medical professionals on a person’s capacity to make a valid will.
Background to the Case
Evan Richard Hughes (‘the deceased’) died in March 2017.
Gareth Hughes (“Gareth”), Cerys Pritchard (“Cerys”) and Elfed Hughes (“Elfed”) were his children from his first marriage. His son, Elfed, sadly predeceased him.
The deceased was a farmer and also a director & shareholder in the family building business. He owned various plots of land, amounting to around 58 acres.
Initially, the deceased made a will in 2005. That left his shares in the family business to Gareth and Cerys, whilst his farmland was left in its entirety to Elfed. Elfed had been advised, by his Father, that he would one day inherit the farmland.
Elfed had made this clear to his own family that they would one day inherit the farmland from his Father’s estate. In fact, Elfed’s son, Geraint, went to work on the farm at his Father’s insistence for half the wage that he received if employed elsewhere, on the basis that Elfed told him that ”everything would be his one day”.
In 2014, the deceased began to experience memory and behavioural changes which were found to have been caused by a stroke. He was also diagnosed as having moderate to severe dementia.
Elfed sadly passed away in 2015 and, shortly thereafter, the deceased changed his 2005 will and created the 2016 will. The most significant change was that the deceased changed the beneficiary of the farmland. As Elfed had now died, the deceased wanted to pass the majority of the farmland to his other son, Gareth, with the residue being left to his daughter-in-law (Elfed’s widow), Gwen, for her lifetime, and then to her three sons (including Geraint) equally.
The solicitor who drew up the 2016 will had some concerns about the deceased’s capacity and so obtained a capacity assessment from a medical professional before the new will was approved and executed. That was in compliance with good practice and the so-called “Golden Rule”.
The Golden Rule
The Golden Rule originated from the case of Kenward v Adams (1975). The case 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 themselves of the capacity and understanding of the testator, and records and preserves their findings.
The Golden Rule is, effectively, good practice for solicitors and is not a rule of law. It does not directly impact upon or determine the validity of a will. Instead, it is a set of principles which has been widely approved by the courts as having the potential to reduce the risk of a claim of a lack of testamentary capacity and should, therefore, be complied with as an additional precaution where possible.
The doctor confirmed that the deceased did have testamentary capacity and even went so far as to ask the deceased to go through the draft will in his presence, which he did. The doctor had no concerns and was happy to act as a witness to the will.
First Instance Decision
Following the deceased’s death, Elfed’s widow and son argued that the 2016 will was invalid due to a lack of testamentary capacity. They asked that his estate be passed in accordance with his earlier 2005 will.
The trial judge decided that the deceased had lacked testamentary capacity and, therefore, found the 2016 will invalid. This decision was made despite the doctor's assessment, the detailed attendance notes and witness statement from the solicitor who drafted the will, and an independent retrospective medical expert’s report, all of whom were of the view that the deceased did have the requisite testamentary capacity.
The trial judge’s views and reasoning were that:
- The deceased did not have the capacity at the time he made his 2016 will to understand the historical agreement he had had with his son, Elfed, and the financial sacrifices his son had made on the basis that he would receive his ‘reward’ from his Father’s estate;
- The deceased did not fully understand the extent of the land he owned; and
- Generally, the deceased lacked the capacity to fully appreciate that the changes made under the 2016 will would have a serious effect on the beneficiaries and it would not just be a case of ‘neatening’ up the provisions.
Unsurprisingly, that judgment was appealed and the Court of Appeal has now overturned it, holding that the 2016 will was valid.
In doing so, the Court of Appeal stated that the trial judge had not given sufficient weight to the medical evidence of the doctor who assessed the testator’s capacity and had met the deceased, nor to the evidence of the solicitor who had drafted the new will. Essentially, the trial judge did not give the professional evidence the weight it deserved.
This case has certainly calmed the shockwaves felt by professionals involved in the preparation of wills following the first instance decision.
It has also reconfirmed the importance and value in complying with the Golden Rule principles if there is any reason to doubt a testator’s capacity, and the weight that the courts will give to the evidence of professionals who are involved in the preparation of Wills, and who actually see the testator at the relevant time (i.e. when the Will is being executed).
Further, it clarified the factors and evidence that a court should take into account when considering a validity challenge on the basis of a lack of capacity. In particular, it was stated that a testator should not be required to justify any changes being made to prove their testamentary capacity. Whilst it is prudent for a solicitor and a medical professional to ask about changes being made from earlier wills, that element should not be elevated into a requirement to establish the presence of testamentary capacity.
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We handle a variety of disputes and issues surrounding wills and estates. Further, we are able to offer high quality, cost-effective legal advice on such matters, with flexible funding arrangements such as Conditional Fee Agreements (i.e. No-Win, No-Fee arrangements) also being available.