The Risk of Losing Your Will Dispute or Will Contest Claim

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the risk of losing a will dispute or will contest claim in relation to a will prepared by a Solicitor supported by the testator’s GP in compliance with the “golden rule”

Can a Will prepared by a Solicitor who complies with the “golden rule” be overturned?

In general a Will that is prepared by a Solicitor who ensures that his elderly or ill client is assessed for mental capacity by his/her GP, is usually considered to be solidly valid. In other words, it is unlikely to be one that is successfully disputed or contested by a client supported by a no win no fee arrangement simply because it would appear more likely than not that it would be upheld as a legally valid Will by the Court. Plainly a no win no fee Solicitor dealing with disputes or contests over Wills and/or estates and inheritances, is not going to take on a case that he or she considers might be lost.

So what is the “golden rule” in Will disputes or Will contest and estate or inheritance claims?

We have considered this on a number of occasions before in previous blogs, but it doesn’t hurt to provide a reminder! However please refer for a more detailed analysis to our earlier blog below:
https://www.willclaim.com/testamentary-capacity-golden-rule/

Under the so-called golden rule (as per Templeman J in Kenward v Adams 1975 CLY 3591) where a testator was elderly and/or ill, it was suggested that a prudent Solicitor should consult his/her treating doctor to obtain confirmation of capacity before completing a Will. Ordinarily one would assume that if done, the Will in question would be immune from challenge. Not so!

The recent decision in Hughes v Pritchard 2021 EWHC 1580 (Ch)

This case was only decided in June 2021. It seems to have some probate practitioners wringing their hands in frustration, given the decision by HHJ Jarman overturned a Will scrupulously prepared by a Solicitor armed with a confirmatory capacity report by the testator’s GP who also seems to have witnessed the Will. For the full report go to:
https://www.bailii.org/ew/cases/EWHC/Ch/2021/1580.image1.html

As mentioned the Solicitor who prepared the Will was careful to be certain the testator had capacity (over a number of meetings). Moreover, an eminent Psychiatrist (Dr Hugh Series) who examined the papers after the event also concluded the testator had legal testamentary capacity at the relevant time.

Notwithstanding the plethora of evidence confirming capacity, Judge found the will to be invalid because (in his view) the testator lacked legal testamentary capacity!

What does this reveal about Will dispute and Will contest claims where the legal validity of a Will is in issue

It clearly highlights the risky nature of these disputes and sustains our own commentary to clients about the risk of taking a case to trial where plainly there is no guarantee of success, even in the best cases.

Moreover it also reminds us that the court is the ultimate arbiter in cases of this nature and can completely disregard what might first appear to be compelling lay and expert evidence.

What is not often mentioned in Kenward v Adams is Templeman J’s other recommendation that earlier Wills should be examined as part of the process of checking capacity. See for instance:
https://swarb.co.uk/kenward-v-adams-chd-29-nov-1975/\

It appears that in Hughes v Pritchard that this was not properly done or at all so that when in cross-examination the GP who had previously confirmed capacity was told the previous Will revealed that the new Will was making significant changes, he then appeared to throw doubt on his earlier positive capacity assessment, suggesting he might not have carried out the assessment at all but passed it out to an independent medical expert. Equally the Solicitors failure to discuss the significant changes from the earlier Will seems to have been considered relevant by the Court, possibly even suggesting that the process of taking instructions might have been deficient at the time. Against this backdrop was considerable evidence supporting a pre-existing and unchanged intention to distribute the estate as per the previous Will because it was being farmed by one of the deceased’s children. The Judge’s findings then are probably understandable and rational in this context.

We have copied and pasted a sample from the Judgment below:

58. As it was, Dr Pritchard himself states at paragraph 12 of his witness statement:
    “As far as I recall, when I checked the Wills provided by Mr Hughes’ solicitor in May 2016, there was no major change except the substitution of Mr Elfed Hughes with Mrs Gwen Hughes and Sons, and it was a surprise to me when I later found out, in or around June 2017, that other changes had been made.”
    
59. He expanded upon this in his oral evidence by saying that he was worried that the changes were far more complex than he first thought. As a result he did not question Evan Hughes as to the reason why he was proposing to leave 58 acres to his son Gareth rather than to his daughter in law Gwen Hughes and/or her sons. Had he known of this proposal he would have asked this question. However, as he was the GP to several members of the family, had he known of this change it is more likely that he would not have carried out the assessment at all but passed it out to an independent medical expert. It was a matter of speculation whether or not the outcome of a full assessment would have made any difference.
    
60. 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.
    
61. That also impacts on the evidence of Manon Roberts, as she accepts that she placed reliance upon Dr Pritchard’s evidence. Nevertheless she maintained in cross-examination that during her attendances upon Evan Hughes she had well in mind the Banks v Goodfellow test, whilst also accepting that she has no medical qualifications.
    
62. In cross-examination she explained her use of the word “distant” in her attendance note of her first meeting with Evans Hughes on 11 March 2021 as being “as if he had a bit of a cloud over him.” She accepted that at this meeting she was not told about his medical background. In the meeting on 30 March 2016 she described him as having “a bright twinkle in his eyes.” It is common ground that at this stage Evan Hughes was in denial of his condition which is not an uncommon feature of it, and this observation in my judgment gives little insight into his testamentary capacity.
    
63. She did not see the 2005 will until 13 April 2016 when she received a copy from other solicitors. She forwarded a copy to Gareth Hughes’ home address. She confirms in her witness statement that she did not at any stage discuss the 2005 will with Evan Hughes or ask him as to why he wanted to change the provision of his land to his son Elfed so that 58 acres were to go instead to his son Gareth. This was also the position of the day of the execution. She read out the draft will and explained the land by reference to maps. Evan Hughes nodded and agreed. Dr Series, in answering questions on his report, says that it is possible that his measured impairment, which was partial, in visuospatial function could have caused him some difficulty in interpreting maps, but thinks it is likely that he would have relied more on his memory and knowledge of the land which he had been familiar with for many years rather than on looking at maps.
    
64. At the end of Manon Robert’s attendance note of that day she states that she had “no issues whatsoever” with capacity, based upon his being “able to answer open questions without any issue as well as volunteering information and having a general conversation.” Accordingly in my judgment, her evidence is an indication of capacity but it has its limitations for the reasons set out above.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.