Issue 39 October 2021 - Journal - Page 66
Certain about capacity?
Expert evidence is no guarantee...
Claims involving lack of capacity and an individual’s
ability to make a will, as a result, are often based on a
variety of evidence sources. The use of medical evidence came back into the spotlight in the case of
Hughes v Pritchard which for some practitioners may
have provided a surprising result.
persuaded however that Evan had appreciated the
“understanding that he had had with his son Elfed
over many years” nor “the promises made to his
daughter-in-law and grandsons thereafter” (judgement para 86) and how these were then affected by
the subsequent changes he made to his will.
Evan Hughes died leaving a will executed just under
a year before his death. That will was executed at a
time when Evan was living with dementia and also
grieving the loss of his son and the last will was challenged because Evan lacked testamentary capacity (as
well as several other claims not discussed here). The
court agreed, finding the will was invalid due to a lack
of capacity but that, had it not been invalid for such a
reason, a farmland plot would have been subject to a
proprietary estoppel claim in any event.
The case is a reminder that reliance on expert or
medical evidence is no guarantee of successfully upholding (or indeed overturning in some cases) a will.
All aspects of the testator’s intentions should be considered carefully, especially when taking instructions
for a new will or in bringing/defending a claim. A will
drafter should not be afraid to question their client on
the changes, particularly where they are quite significant or change a long-standing history of testamentary intentions in early wills. Reviewing earlier wills
with a testator helps to get a feel for the changes being
made and to verify the information being given by
them or others. It will also help if a Larke v Nugus enquiry about the circumstances in which the will was
made arrives which will inevitably ask if such discussion took place.
The slightly unusual factors in the case are that the
will was drafted by a solicitor who followed the
‘Golden Rule’ which is often not the case in such
claims. The expert evidence presented to the court
also suggested Evan had testamentary capacity. However, the expert gave evidence at trial that he had not
appreciated the significant changes in the last will
compared to Evan’s previous wills. The court was not
Hughes v Pritchard & Others  EWHC 1580
Professor Brendan Thomas Monteiro
Consultant Psychiatrist, Honorary Professor of Health
and Society, University of Salford
Dr Anke Hensiek
MBBS LRCP MRCS FRCPsych CertMR
Consultant Psychiatrist – Elysium Healthcare Group, Adult Mental Health and
Forensic Rehabilitation Services.
Dr. med., PhD, FRCP
Dr Hensiek is an experienced Consultant Neurologist at
Addenbrookes Hospital, Cambridge.
Honorary Professor, Health and Society, University of Salford since May 2018.
She has extensive experience in all aspects of neurology,
including headache, pain, head-injury, epilepsy, Parkinson's
Disease, neuropathy, muscle disorders, memory problems,
movement disorders and Multiple Sclerosis.
Personal Injury Reports.
She conducts specialist clinics in motor neuron disease and
hereditary neurological conditions including ataxia, spastic
paraparesis and neurofibromatosis. She has a strong academic
background with ongoing clinical research involvement.
34 years’ experience - Consultant Psychiatrist.
Forensic psychiatric reports on deaf and hearing people.
Assessments in private consulting rooms, prisons, hospital and Domiciliary
visits, Mental health assessments of deaf parents.
Industrial injuries (deafness and tinnitus).
Level III - Advanced level of communication
using British Sign Language
Other languages - Hindi.
She has extensive medicolegal experience since 2009,
including personal injury, medical negligence and reports
for the GMC.
Contact: Kayleigh Shough, PA
Tel: 07767 329 802 F: 01760 336 968
Address: Cambridge Neurology, FAO Kayleigh Vine,
115 Southlands, Swaffham, Norfolk, PE37 7PG
Area of work: Cambridge, Norfolk surrounding counties &
EXPERT WITNESS JOURNAL
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