In the recent case of Hughes v Pritchard [2021] EWHC 1580, the judge found that a testator had lacked testamentary capacity notwithstanding expert evidence to the contrary.
The testator had a history consistent with dementia, including lapses of memory and behavioural changes from 2014. He made a new will in 2016 following the death of one of his children.
He was assessed as having a moderately severe degree of impairment, but his doctor confirmed he had ‘no issue’ with his capacity to change his will. However, the doctor said in evidence that he did not appreciate the complexity of the changes to the testator’s will.
The judge commented: ” In my judgment this evidence, which I accept, does impact significantly upon the weight to be attached to Dr Pritchard’s assessment and in turn upon Dr Series’ conclusion, which is based in part upon that assessment. On the facts of this case, it does not mean that no weight should be attached to Dr Pritchard’s evidence. His recording of the assessment itself in my judgment is an indication that Evan Hughes did have testamentary capacity at that time. Moreover, Dr Pritchard in his oral evidence said that on the day of the execution of the 2016 will when Evan Hughes was shown the map attached to the draft will, he said without prompting that Yr Efail was to go to his son Gareth, but he did not say that this was a change.”
The key part of the judgment is as follows:
“There was a period of some eight weeks between the beginning of May when he was deteriorating from week to week, and the execution of the 2016 will. Thereafter, on the information before Dr Series, there was a relatively rapid decline. On the evidence before me it is likely that this decline started a little earlier, by the beginning of May at the latest, as observed by his son. No reason was given during the process of changing his will for departing from his understanding with his son Elfed and what he said to his daughter-in-law and grandsons after their father’s death, nor during this process was it mentioned that this did represent a change from that understanding.
85. Although the 2016 will was rational on the face of it, there is a real doubt about his capacity and in my judgment that doubt has not been displaced. However, I would prefer not to leave matters simply on the burden of proof. In my judgment, on the balance of probabilities, it is likely that he did not have capacity as at 7 July 2016 in three particulars, any one of which is sufficient to vitiate the 2016 will. If these particulars are taken together, that likelihood is strengthened.
86. The first is that he did not by then have the capacity to appreciate the understanding that he had had with his son Elfed over many years during which his son had looked after his stock and land for no financial reward, or the promises made to his daughter-in-law and grandsons thereafter. This is not just a case of forgetting a promise made or the provisions of his previous wills.
87. The second is that he lacked capacity to understand the extent of Yr Efail. Although a map showing the 58 acres and his other land was produced during that process, it is likely that his visuospatial impairment was such that he had difficulty in interpreting maps. It is likely that he relied more upon his memory, but that memory by 7 July 2016 was significantly impaired as shown by some of the examples set out above including confusing a field at Bwchanan for Yr Efail. While that episode, taken by itself, might be put down to a slip of the tongue or lapse of memory, and while it appears that he did have an appreciation of the extent of this when speaking to Richard Williams in March 2016, there was significant deterioration in his vascular dementia between then and 7 July 2016.
88. The third is that he lacked the capacity to understand that the changes implemented by the 2016 will were more than just those necessary to “neaten” up (in the words of his cousin Ian Hughes) his testamentary provisions following the death of his son Elfed.”
Accordingly, he found the will invalid on the grounds of testamentary capacity. Full judgment here.