Spotlight on dementia: can you challenge a will despite the views of medical experts?

28 June 2021

Alzheimer’s disease, the most common form of dementia, has been in the spotlight recently given a recent scientific breakthrough with the US approving the first new Alzheimer’s drug in 20 years. Light has also been shed on dementia and assessing testamentary capacity in the recent case of Hughes v Pritchard [2021] EWHC 1580 Ch. In this case, Mr Hughes, who suffered from moderately severe dementia was nevertheless deemed to have capacity at the time of amending his will by his GP, a view supported by a joint medical expert later instructed in the case. Despite this, his will was overturned by the judge on the basis that he did not have the requisite capacity to make the changes to his previous will, which were much more significant than the medical professionals, and indeed Mr Hughes, had appreciated.

Care and caution required  

The central lesson to be learned from this case appears to be that caution must be exercised when following the “golden rule”, which is: where there is doubt about testamentary capacity, this should be assessed by a medical expert. In this case, the GP in question later accepted at trial that he was misled by the Claimant into thinking that the 2016 will only made minor changes to the previous will and that, crucially, Mr Hughes also believed this. Mr Hughes’ previous will had left 56 acres of farmland to his son Elfed however Elfed tragically passed away and Mr Hughes then sought to change his will in 2016. However the changes meant the farmland would be left to his surviving son Gareth, the Claimant in the proceedings, rather than Elfed’s family.  Elfed’s widow and son, along with Mr Hughes’ daughter, challenged the 2016 will on the basis that Mr Hughes lacked capacity to make it (or there was a want or knowledge and approval and/or undue influence by Gareth) or alternatively that they had a proprietary estoppel claim against the land in any event given Mr Hughes’ had promised Elfed that the farm, on which he worked for many years without any financial gain, would one day be his. 

 

Banks-v- Goodfellow test reinforced

This case has reiterated the importance of the Banks –v- Goodfellow test and ultimately led the judge reaching the following conclusions:

Banks-v- Goodfellow test

Judge’s conclusion in Hughes v Pritchard [2021]

Testator must broadly understand the nature of the will and its effect.

He did not have capacity to appreciate that he had an understanding with Elfed that he would inherit the farmland or the promises made to Elfed’s wife and sons.

Testator must have some idea of the extent of the property they are giving away.

He lacked capacity to understand the extent of the farmland he was giving away.

Testator must be aware of the persons whom he would usually be expected to provide and must not have any delusions of the mind that would cause him reason not to permit those individuals to benefit.

He lacked capacity to understand the changes made by the 2016 will were more than minor changes to his previous will.

 

Comment

The judge determined that the will was invalid because of the particular facts of this case, including that the will brought into effect significant, rather than minor, changes. It highlights that when considering whether to challenge a will on the grounds of lack of capacity, it may be important to ascertain not only whether a GP assessment took place but also what the instructions to the medical professional were and what they believe the testator’s understanding of the effect of the will to be. Capacity must be considered in relation to the particular transaction, its nature and complexity and ultimately decisions on capacity are subject to the unique facts of each case.

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