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01st July 2021

Will overturned despite expert report suggesting capacity

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Evan Hughes, a farmer based in Anglesey, died in March 2017 aged 84. At his death, Evan owned a considerable amount of land as well as a shareholding in a family building business. He had three children: Elfed, Carys and Gareth.

Elfed farmed his father’s land and worked incredibly long hours, in reliance upon the well-known understanding communicated by Evan that, on Evan’s death, the farmland would be left to him. Consequently, Evan’s shares in the family building business would be left to Carys and Gareth equally. In 1990 and 2005, Evan made Wills to this effect. Tragically, however, in September 2015, Elfed took his own life.

In March 2016, Evan attended a local firm of solicitors to make a new Will. At the time, he was suffering from moderately severe dementia. As a result, the solicitor arranged for Evan’s capacity to be assessed in accordance with the ‘golden rule’ and Evan’s GP determined that he did have capacity to change his Will. Subsequently, on 7 July 2016, Evan executed his third and final Will, which among other provisions left 56 acres of farmland to his surviving son, Gareth.

When Evan died and the 2016 Will was admitted to Probate, it was challenged by Evan’s daughter Carys, and Elfed’s widow and son. They argued that the Will was invalid due to Evan’s lack of capacity and further brought a proprietary estoppel claim based on Evan’s promises to his late son.

At the trial, a single joint expert concluded that Evan had testamentary capacity. However, the Court found that Evan’s GP, at the time of assessing capacity, was not fully aware of the changes which were to be made to Evan’s Will. It was highlighted that Evan was of the opinion that his new Will would only make minor changes to his previous Will. This was evidently not the case.

The High Court, therefore, held that Evan lacked testamentary capacity and the disputed Will was invalid. The Court also held that even if the Will had been valid, the 56 acres of farmland left for Gareth would nevertheless be subject to a proprietary estoppel claim in favour of Elfed’s estate.

This case highlights the importance of ensuring that health care professionals are fully briefed when carrying out capacity assessments and are aware of the impacts of proposed changes to a testator’s Will.

For more information on this article please contact Kerri Woodrow on 01604 463350 and Tiffany Benson on 01604 463340.


Hughes v Pritchard and others [2021] EWHC 1580