Testamentary Capacity when Executing a Will

In 2021, a High Court decision held little weight to the evidence of an experienced Will Writer and a medical doctor, known to the Deceased, as to the capacity of the Deceased and his abaility to validly execute his Will. This, of course, caused some issues for probate practitioners and their ability to assess whether their Clients had sufficient testamentary capacity to provide instructions and execute their Wills.

However, the Court of Appeal recently heard ground to appeal the case of Hughes v Pritchard [2022] EWCA Civ 386.



The Deceased, Mr Evan Hughes, was a farmer on Anglesey, and also a director and shareholder of a limited company. Evan had a previous Will from 2005, but in 2016, approached a solicitor, Ms Manon Roberts, in order to draft an updated Will. Ms Roberts, after her initial meeting with Evan in March 2016, had some queries as to whether Evan had the capacity to execute a Will, and therefore instructed Dr Pritchard to assess Evan’s capacity. Ms Roberts provided Dr Pritchard with a copy of the 2005 Will, as well as a draft of the 2016 Will. Dr Pritchard visited Evan in June 2016 and concluded that he had no issues regarding Evan’s capacity. Dr Pritchard was also in attendance when the Will was executed on 07 July 2016.

Evan’s children were Gareth, Carys and Elfed. Unfortunately, Elfed pre-deceased Evan in 2015, and the company had started to decrease from 2014, and eventually ceased trading in 2016. These events appeared to cause Evan to realise his need to update the 2005 Will, given the changes in circumstances.

The 2005 Will had bequeathed large areas of land (known as Yr Efail) to Elfed, whereas the 2016 Will instead gifted Gareth that same land, and instructed that the remainder of the farmland was held on trust for Elfed’s widow (Gwen) as a life interest, after which it would pass to Gwen’s three sons. Carys would receive a property known as Derwyddfa, and Evan’s grandchildren would inherit the residue of the Estate, which included Evan’s shares in the company as well as any cash assets. The 2005 Will provided that the grandchildren would receive £2,000.00 each.


The Appeal

The Appeal was made on the grounds that the High Court judge had erred in his approach to testamentary capacity, as the Judge:

  1. was wrong to ignore the strong presumption that a Will which is drafted by an experienced, independent lawyer, should only be set aside on the clearest evidence of lack of mental capacity as was held in the case of Hawes v Burgess;
  2. had misdirected  himself in law when he concluded that the making of the 2016 Will was a “more complex transaction” testamentary capacity being relevant to the making of the Will, as opposed to the precise Will being made;
  3. was wrong to decide that Dr Pritchard’s evidence would have been different had he been more aware of the terms of the 2016 Will;
  4. was wrong to disregard the evidence of Ms Roberts (the Will Writer); and
  5. the finding of lack of testamentary capacity was not a reasonable finding based on the evidence.


The Decision

The Court of Appeal considered the case of Banks v Goodfellow, which provided a test for Will Writers to consider when drafting a Will:

  1. does the Testator understand the nature of the act and its effects;
  2. does the Testator understand the extent of the property of which they are disposing; and
  3. is the Testator able to comprehend and appreciate the claims to which they ought to give effect.

Whist initially, the burden of proof for proving capacity is on the person propounding the will, when a Will appears to be rational on the face of it, the Court will presume there is capacity. The evidential burden then shifts to the person asserting lack of testamentary capacity. If they can show a real doubt, the burden then shifts back to the person propounding the Will (Key v Key).

The Court of Appeal also considered the cases of Hawes v Burgess (as detailed above) and the Golden Rule explained in Kenward v Adams. It was held that in the case of a Will being made by an aged Testator, or a Testator who has suffered a serious illness, it should be witnessed and approved by a medical practitioner who satisfies himself of the capacity and understanding of the Testator.

When considering the Banks v Goodfellow test, the Court of Appeal considered that although prudent, it was not required for either Ms Roberts or Dr Pritchard to focus on the terms of the 2005 Will. And in any event, a Testator is not required to justify any changes to testamentary dispositions, nor are they required to remember past terms of a Will as long as they can access the information if needed, and understand it once reminded of its terms. Further, in this instance, some consideration as to the terms of the 2005 Will had been made, given the changes in circumstances to the company and Elfed. The Court of Appeal held that there were numerous changes to the 2005 Will, but the Judge appeared to focus on Yr Elfail alone.

With regards to the complexity of the 2016 Will, it was held that it was no more complex that the 2005 Will, or even under previous Wills. Further, the Court or Appeal considered that there were complex moral claims as a result of the 2016 Will, however, there was little evidence to suggest that Evan did not have the capacity to understand the moral claims.

The Court of Appeal held that once Ms Roberts and Dr Pritchard’s evidence was given the proper weight, the High Court Judge’s decision that there was a lack of testamentary capacity was not open to him, and therefore set aside the Order that the 2016 was invalid for want of testamentary capacity.



This Appeal highlights that cases such as Banks v Goodfellow and Hawes v Burgess are still good law and are to be followed by probate practitioners. Further, that as long as the Will appears to be rational on the face of it, a Testator may dispose of their property in any way they see fit[1], even if it does seem unfair or unkind.

[1] subject to the provisions of the Inheritance (Provision for Family and Dependants) Act 1975