“[T]here were further meetings between Evan and Gareth Hughes and Manon Roberts concerning the proposed new will on 30 March and on later dates. In respect of each a detailed attendance note was taken. . . ”
“Client confirmed that he was happy for his shareholding in the Company should the same be in existence, to pass to his grandchildren”
“[He] was also aware that I was assessing his capacity to understand and retain information regarding the changes he wishes to be made” and that he was aware that “the changes in the Will had to be made after the sudden death of his son Elfed and as a result he wishes to amend some details within it”
“He made it clear where he wished his different property to be left following his death and also regarding the future of Bwchanan. He informed me that he wished Gwen, Elfed’s widow, to remain in the house and then to be passed to her three sons whom he clearly named.”
“MER [Ms Roberts] had attended upon Mr. Hughes for approximately 50 minutes minus the period of some 5 minutes when she attended to amend the Lasting Power of Attorney. MER had no issues whatsoever in respect of Mr Hughes’ capacity. He was able to answer open questions without any issue as well as volunteering information and having a general conversation. He appeared alert and lucid throughout.”
“Senile dementia (First). Appears better. Very logical. Needs to change will after Elfed’s death – wants to give share to Gwen and the boys – nothing complex. Has full capacity and understands what he needs to do.”
“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.”
“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.”
“. . . impact[ed] significantly upon the weight to be attached to . . [his] 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 wasshown 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.” ([60]). The judge also considered that this evidence impacted on Ms Roberts’ evidence because as she accepted, she had placed reliance upon the doctor’s assessment ([61]). The judge went on at [61] to record, nevertheless, that Ms Roberts “maintained in cross-examination that during her attendances upon Evan Hughes [the Deceased] 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 on11 March 2021 as being “as if he had a bit of a cloud over him.”
“This is a further indication of testamentary capacity, but as this evidence was not tested in cross-examination only limited weight can be attached to it.” ([66]) This appears to be a reference to the statements admitted under theCivil Evidence Act 1995 ; ii) Gareth had accepted that the Deceased was not the man he was after the death of Elfed and had become frail, but maintained that he knew his own mind and was the boss until the last couple of months of his life; and his confusion was caused by urinary tract infections ([67]). He also accepted that on3 May 2016 he had said to Ms Roberts that his father was deteriorating from week to week but that he was exaggerating because the Deceased was pressing him and he wanted Ms Roberts to speed up the process of executing the 2016 Will ([68]); iii) There was evidence of episodes of good memory during this period, but that “the overall picture, consistent with the medical evidence is deterioration from 2014, to his not being the same man after the death of his son in 2015, to moderately severe impairment due to vascular dementia by March 2016, followed by relatively rapid deterioration. On the information before Dr Series, he states that that occurred in the year following execution of the 2016 [W]ill in July of that year. In my judgment, it is more likely that Gareth Hughes said what he did to Manon Hughes (sic) [Ms Roberts] about his father’s deterioration in May 2016 as that is what he perceived at the time, and that is what was happening.” ([69]); iv) Soon after Elfed died, the Deceased had dinner with Gwen and Stephen. He was worried about his cattle over the winter and Gwen reassured him that they would continue to look after them as Elfed had done. He was relieved and said that he wanted Geraint to carry on what his father had done. He further sand that “nothing would be changing in regard to the land.” ([70]); v) Towards the end of 2015, Geraint attended a meeting with the Deceased and their accountant Richard Williams and Carys at which the Deceased stated that he wanted Geraint to carry on his father’s work and when asked about payment stated that he (the Deceased) would look after him (Geraint) and that he should not look for payment because they “would own everything one day.”
“In my judgment there is an impressive body of evidence that there was such an understanding over many years prior to the death of Elfed Hughes which his father shared within the family and to others. Nevertheless Gareth Hughes maintained that his father changed his mind after his son’s death and wanted to leave Yr Efail to him. That was something which their father was entitled to do, especially given the downturn in the financial position of the company.”
“. . . it is clear on the evidence which I have accepted, that Evan Hughes [the Deceased] had the capacity to appreciate, and did appreciate, the claims of persons who had a claim and to judge fairly between competing beneficiaries, at least until3 March 2016 and the meeting with Richard Williams. These included those of his son Elfed and his family, but also those of his son Gareth by referring to the money which he had put into the company.”
“82. It is possible that he changed his mind in the days following before his first meeting with Manon Roberts, but matters do not end there. A couple of weeks later he told Richard Williams that to sell Yr Efail would be disrespectful to his son Elfed and his family. By this stage he was suffering from moderately severe impairment. By the beginning of May he was deteriorating from week to week. On the 19 May, whilst appearing to Dr Pritchard to have capacity he also said that he was changing his will so that his grandsons would inherit the share of their father but there was “nothing complex.” 83. Again, it is possible that he was deliberately saying one thing to his solicitor and another thing to his GP for some reason. However, he gave a similar reason for the will change to his cousin, who said in his statement that he thought his cousin Evan was more inclined to discuss such matters with him as he handled the paperwork in the company over many years. In his oral evidence he said that his cousin used him as a sounding board to make sure he was doing the right thing. Evan Hughes gave a similar reason for changing his will again to Dr Pritchard during the 14 June assessment when there was no mention of 58 acres going to his son Gareth.” “84. 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. . . . 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. . . . In my judgment on the balance of probabilities, it is likely that he did not have capacity as at7 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 by7 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 and7 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.”
“It is essential . . . that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his senses of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
“We are not a court of first instance. Our task is to review the deputy judge’s decision . . . His decision was in the end a decision of fact based upon all the evidence he heard. We can only allow on appeal if we are satisfied he was wrong . . . There was good evidence to support his finding. Mr Cooper [counsel for the Appellants] accepted that [the Appellants’] case had to be that no reasonable jury could have reached the deputy judge’s conclusion. . . .”
“. . . a will which had been drawn up in accordance with instructions given by a testator at a time when he had had full testamentary capacity but executed at a time when he no longer had such capacity would nevertheless be valid provided that he testator knew that the document he was signing conformed with the instructions he had given to the draftsman and approved it by executing it in those terms; that the need for testamentary capacity at the time of execution was not imported by the requirement that the testator know of and approve the contents of the will, which meant no more than that it had to be shown that the testator accepted its contest as representing his true intention.”
“54. Her overall submission was that the judge’s finding that the Deceased lacked the requisite capacity to make the 2007 Will was amply justified on the evidence, in particular on the expert opinion of Professor Jacoby. The key question is whether the judge’s findings are sufficient to overcome the strong prima facie case for the validity of a will drafted by an independent solicitor who oversaw its execution and justify the judge’s conclusion that the Deceased lacked testamentary capacity in a case in which the judge found that she knew she was making a will and appreciated the extent of her property.” . . . 57. . . . it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational. … 60. My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”
“14. I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed.”
“Any view a solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless”