Analysis
The testator owned substantial real estate, including two plots of farmland and a cottage. He had three children. His son Elfed began working on the farmland from a young age and in 1999 acquired neighbouring farmland which he farmed together with the testator’s land. In due course Elfed brought his own son to work with him on the farm.
The testator had made his testamentary intentions clear for some time, namely that his son Gareth and daughter Carys (the appellant and first respondent respectively) should inherit shares in a family company and Elfed should inherit the farmland known as ‘Yr Efail’. In 2005 he executed a will reflecting that intention; a bungalow was given to the first respondent and the residuary estate was to be shared equally between his three children.
From 2014 the testator experienced problems with his memory, and was later diagnosed with dementia.
Elfed committed suicide in September 2015. In March 2016 the testator attended an appointment with a solicitor to give instructions for a new will distributing Yr Efail to the appellant, other land on trust for Elfed’s family and one other property to the first respondent, and for all other assets (including the shares in the family company) to fall into residue to be shared equally between the two surviving children. The solicitor suggested it would be prudent to obtain a medical certificate from a general practitioner. The testator was duly seen by a GP, who had been provided with both the 2005 will and the draft new will, and who assessed him as having testamentary capacity. In July 2016 the testator again attended the same solicitor to execute the will. The solicitor took a detailed attendance note recording her assessment that he had capacity.
The first respondent and the representatives of Elfed’s estate (the second and third respondents) challenged the validity of the will for lack of testamentary capacity. A single joint expert in geriatric psychiatry concluded that on the balance of probabilities the testator did have testamentary capacity when he gave instructions for and executed the will. At trial, the GP gave evidence that he had been under the apprehension that the 2016 will made only minor changes to the 2005 will and the changes in fact made were ‘far more complex’ than he had appreciated. The solicitor gave evidence that she had not at any stage discussed the 2005 will with the testator or asked his reasons for changing the provision made. Anecdotal evidence was also given by numerous lay witnesses regarding the testator’s state of mind.
Giving judgment [2021] EWHC 1580 (Ch), HHJ Jarman QC held that the focus of the doubt as to capacity was whether the testator ‘had sufficient capacity to understand the change he was making from his previous wills’. He concluded the testator did have capacity to understand the nature and effect of a will and the persons who might have claims upon his estate. Nevertheless, he concluded that the testator lacked testamentary capacity at the date of execution for three reasons:
- (i) he could not appreciate the understanding reached with his son Elfed’s family to give Yr Efail to them;
- (ii) he could not understand the extent of Yr Efail; and
- (iii) he lacked capacity to understand that the changes made by the 2016 will were more than those required to ‘neaten up’ his testamentary provisions following Elfed’s death.
The judge also concluded that, in any event, Elfed’s estate had a claim in proprietary estoppel to certain farmland falling within the estate. He held that there was a sufficiently clear representation, and detrimental reliance by Elfed in maintaining his father’s stock for 38 years and purchasing a neighbouring farm so that the two could be farmed together.
The appellant appealed, arguing that the conclusion as to the testator’s capacity was not one open to the judge because he had failed to give due weight to the evidence of the drafting solicitor, the GP and the joint expert and had incorrectly focused upon the changes made by the 2016 will from the 2005 will, rather than considering the 2016 will standing alone. The appellant also sought to rely upon the rule in Parker v Felgate (1883) to argue that if the testator had testamentary capacity when instructions for the will were given and was able to understand in July 2016 that the document reflected those instructions, then the will was valid. The respondents’ notice sought an order that Yr Efail was held subject to an equity by proprietary estoppel in favour of Elfed’s estate. The appellant did not challenge the finding on representation, but asserted that the judge gave insufficient reasons in relation to detriment, reliance and remedy.
The issues to be determined were:
- (1) Was the conclusion that the testator lacked testamentary capacity at the date of the 2016 will one which was open to the judge below?
- (2) Should the judge below have applied the rule in Parker to conclude that the will was valid notwithstanding the loss of full testamentary capacity?
- (3) Had the judge below erred in concluding that Elfed’s estate had acquired an equity in Yr Efail by proprietary estoppel?
Held:
- (1) A finding as to testamentary capacity was a finding of fact based upon the judge’s evaluation of the evidence as a whole, and appellate courts should not interfere with such a finding unless satisfied it was a conclusion which no reasonable jury could have reached – Sharp v Adam [2006] (paras [66-67]).
- (2) Where a will is explicable and rational on its face, the conclusion reached by an independent lawyer, who is aware of the relevant surrounding circumstances, has taken instructions for the will and produced a draft, has met with the testator and is fully aware of the requirements of testamentary capacity, is likely to be of considerable importance, but no formal presumption arises and the weight to attach to it will depend upon the circumstances – Hawes v Burgess [2013] clarified (paras [78-82]). Similarly, the evidence of a GP who assesses capacity having met the testator should be given considerable weight, but compliance with the ‘golden rule’ described in Kenward v Adams [1975] is not a touchstone of validity (para [88]).
- (3) The judge below had erred in giving little or no weight to the evidence of the attesting solicitor and GP because they failed to explore with the testator his reasons for changing his testamentary intentions. Although it may be prudent for a solicitor and/or a GP whose attention has been drawn to significant changes in testamentary intentions to ask the testator about those changes, there is no rule that they must do so before their evidence can be accepted. The testator is not required to justify any changes in their testamentary intentions, nor to give reasons for them. Testamentary capacity concerns the ability to understand, not a test of memory; the testator is not required to recall the terms of a past will nor their reasons for it, so long as they are capable of understanding the information once reminded of it – Re Simpson deceased (1977) clarified. Both solicitor and GP were experienced and had taken meticulous notes after detailed discussion with the testator about his actual testamentary intentions. Their evidence should have been given considerable weight (paras [94-104]).
- (4) The judge’s conclusion that the testator could not understand the extent of the land at Yr Efail took no account of the oral evidence of the GP that the testator identified the land on a plan and explained that it was to go to the appellant (para [111]).
- (5) The judge had also erred in focusing on whether the testator had capacity to understand the changes from his previous wills, rather than whether he had capacity in the Banks v Goodfellow [1869-70] sense. He erroneously relied upon the absence of reasons for the testator’s decision to change his testamentary intentions and the question of whether the testator had judged ‘fairly’ between competing beneficiaries. Such considerations play no part in the assessment of testamentary capacity (para [108]).
- (6) The rule in Parker had not been pleaded or relied upon at trial. Had it been, the evidence before the court, particularly the evidence of the single joint expert, would have been different and the judge would have been asked to make positive findings as to the testator’s capacity in March 2016. Therefore, permission for the appellant to rely upon the rule on appeal was refused (paras [68-74]).
- (7) There appeared to be no authority on the question of whether an equity by proprietary estoppel may arise after the death of the representee, but the appellant had neither pleaded nor argued at trial that no such equity could arise and would not be permitted to take that point on appeal (para [121]).
- (8) The judge’s reasons in relation to representation and reliance were sufficient. However, his reasoning in relation to detriment was superficial; he gave insufficient consideration to the collateral advantages received by Elfed through the arrangement with his father and there was no proper assessment of unconscionability, nor any consideration of the effect of Elfed’s death upon the remedy due to the promisee. The matter of proprietary estoppel would be remitted to the High Court for proper consideration (para [122]).
Appeal allowed in relation to testamentary capacity. The issue of proprietary estoppel was remitted to the High Court for reconsideration.
JUDGMENT LADY JUSTICE ASPLIN: [1] This appeal raises some important issues about the proper weight to be given to the drafting solicitor’s evidence and a medical practitioner’s assessment of a testator’s testamentary capacity and the tasks which they need to undertake. [2] The issues arise as a result of an order dated 11 June 2021, …Continue reading "Hughes v Pritchard & ors [2022] WTLR 993"