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A study carried out by Direct Line in 2019 showed that 1 in 4 of people in the UK would be willing to contest a loved one’s Will if they disagreed with the provisions made for them.
The recent High Court case of Hughes v Pritchard & others was a challenge to a Will on the basis that Evan Hughes (the deceased) lacked the required testamentary capacity to make the Will.
At the time of his death, Evan owned a large amount of farmland as well as other assets.
He had three children, Elfred, Gareth and Carys.
Evan had made three Wills, one in 1990, one in 2005, and the last one in 2016.
It was always Evan’s intention that his farmland would be gifted to his son Elfred. Evan had made promises to that effect throughout his life. Elfred had always relied on these promises and had worked long hours on the farm, to the detriment of his family life.
Gareth and Carys were to receive equal shares in Evan’s company instead of the farmland. These intentions were reflected in Evan’s 1990 and 2005 Wills.
Sadly, in September 2015, Elfred took his own life leaving his own three sons and his widow.
Elfred’s death understandably had a detrimental effect on Evan, who had already been suffering with some early signs of memory loss since 2014.
Despite this, Gareth took Evan to a solicitor to make a new Will in March 2016.
Sensibly, the solicitor requested that Evan’s capacity be assessed before preparing the Will.
Evan’s GP, Dr Pritchard, carried out the assessment confirming that Evan did have capacity to make the 2016 Will.
The 2016 Will significantly changed the provisions of the earlier Will. However, Dr Pritchard said in his evidence at the trial that he was led to believe that the changes were only minimal. It was partly on this basis that he considered Evan had the capacity to make the 2016 Will.
Further, Dr Pritchard said he had understood from previous conversations with Evan that, following his son’s death, the farmland would pass to Elfred’s three sons and his widow. Dr Pritchard said he had not appreciated that, under the 2016 Will, a significant amount of the farmland would now pass to Gareth instead.
The judge found that, regardless of Dr Pritchard’s original assessment, the 2016 Will ought to be set aside on the grounds that Evan did in fact lack testamentary capacity.
This is an interesting and important finding, as a doctor had carried out a capacity assessment.
The crucial point here is that Dr Pritchard was misled as to the extent of the changes to the 2016 Will and he admitted at trial that he had not appreciated the significant differences between the 2005 and 2016 Wills.
This case shows that, even if a capacity assessment has been carried out, it is still possible to argue that the testator did not have capacity and that the Will should be set aside.
Our Disputed Wills and Trusts team are able to assist if you would like to seek advice on challenging a Will. If you are thinking of making a Will you can contact our Wealth and Estate Planning team here.
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