Gareth Hughes v Carys Pritchard
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lady Justice Elisabeth Laing,Lord Justice Moylan |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] EWCA Civ 386 |
| Docket Number | Case No: CA-2021-000681 (Formerly A3/2021/1225) |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 386
Lord Justice Moylan
Lady Justice Asplin
and
Lady Justice Elisabeth Laing
Case No: CA-2021-000681 (Formerly A3/2021/1225)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
His Honour Judge Jarman QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Penelope Reed QC and Elis Gomer (instructed by Allington Hughes Law) for the Appellant
The 1 st Respondent did not attend and was not represented
Alex Troup (instructed by Hugh James Solicitors) for the 2 nd and 3 rd Respondents
Hearing date: 1 March 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email, and release to BAILII. The date and time for hand down is deemed to be 10.30 a.m. on Thursday 24 March 2022 .
This appeal raises some important issues about the proper weight to be given to the drafting solicitor's evidence and a medical practitioner's assessment of a testator's testamentary capacity and the tasks which they need to undertake.
The issues arise as a result of an order dated 11 June 2021, made by His Honour Judge Jarman QC, sitting as a judge in the Chancery Division (‘the judge’) by which he: dismissed the claim of the Appellant, Gareth Hughes, for a grant of probate in solemn form in relation to the last will of Evan Richard Hughes (the “Deceased”) dated 7 July 2016 (the “2016 Will”) on the ground that it was invalid due to the Deceased's lack of testamentary capacity; admitted the Deceased's previous will dated 7 August 2005 (the “2005 Will”) to probate; and ordered Gareth Hughes to pay the Respondents' costs (the “Order”).
In addition to determining the question of testamentary capacity, the judge addressed the other heads of the second and third Respondents' counterclaim. The judge dismissed the Respondents' alternative case that the 2016 Will was invalid for want of knowledge and approval or undue influence. He also held that in the event that he was wrong about the invalidity of the 2016 Will, a proprietary estoppel arose in favour of the estate of Elfed Hughes (represented by the Second and Third Respondents) in respect of the Deceased's agricultural land including “Yr Efail”, an agricultural holding of 58 acres which was left to Gareth Hughes under the 2016 Will and that it should be transferred to Elfed's executrix. The Order contained a recital to this effect.
The citation for the judgment is [2021] EWHC 1580 (Ch).
The Deceased died on 7 March 2017 aged 84. Gareth Hughes, the First Respondent, Carys Pritchard and Elfed Hughes were his children from his first marriage. His son Elfed predeceased him. He committed suicide on 18 September 2015. Elfed's widow, Gwen Hughes, the Second Respondent, is the executrix of his estate. Elfed and Gwen had three children, Stephen Hughes, the Third Respondent, Geraint and Sion. They are all adults but are represented in these proceedings by Stephen. I should also mention that Gareth and Carys are respectively the Deceased's executor and executrix and that they are both beneficiaries of his estate. Although Carys gave evidence before the judge, she was not represented and took no part in those proceedings or in the appeal before us. For ease of narrative, I shall refer to the members of the Deceased's family by their first names. I mean no disrespect in doing so.
As some of the grounds of appeal and the question of testamentary capacity itself turn upon the facts, it is important to have a detailed grasp of the background to this matter. It is important, in particular, to have an understanding of the medical evidence before the judge and the evidence of the drafting solicitor, Ms Manon Roberts. I shall set out the essential elements. They are taken from the judgment and the documentation which was before the judge and to which we were referred.
Before turning to the facts, I should add that the judge heard over twenty witnesses over the course of a four-day trial, some in person and some by video link, some of whom gave their evidence in Welsh, the judge also being a Welsh speaker. He also read two statements admitted under the Civil Evidence Act 1995.
Relevant background
The Deceased was a director and shareholder in J. Parry & Hughes Ltd, a family building company which had been established by his grandfather (the “Company”). Gareth, Elfed and Carys became directors and shareholders in the Company in around 1985 when the Deceased's cousin, Ian Hughes, decided to leave the business. Gareth took over the supervision of the building work carried out by the Company, after the Deceased retired in 2003. Both he and Elfed worked on the construction side whilst Carys and her husband were responsible for administration.
By 2014, business was beginning to decrease and the Company sold property to pay off debts. Each of Gareth, Carys and Elfed put capital into the Company and in 2016, the Deceased made a director's loan of just under £108,000. By then the Company was making a significant loss and work had dried up. The Company ceased trading in 2016 and it is recorded that it was in the process of being dissolved in or around March 2016.
The Deceased was also farmer on Anglesey. He owned and rented various plots of land and owned both sheep and cattle. He had inherited farmland from his family.
At the time of his death he owned substantial assets including: the bungalow where he lived, known as “Arfryn”; 79 acres of farmland known as “Bwchanan”; another 58 acres of farmland about 3 miles from Bwchanan known as “Yr Efall” or “Yr Efail”; a cottage known as “Derwyddfa”; and livestock. He also had a bank balance of around £290,000. The land at Yr Efail is at the centre of these proceedings. It is variously named as Yr Efall, Yr Efail and Yr Refail. I will refer to it as Yr Efail.
Elfed began working on his father's farm shortly after leaving agricultural college and built up a substantial herd of cattle and flock of sheep of his own. He also looked after his father's stock and land for some thirty-eight years. He was permitted to keep his animals on his father's land rent-free and the arrangement was reciprocal. In 1999, Elfed bought farmland next to that of his father and farmed both as a single unit, although the accounts were kept separately. He built a bridge to link the two and a large cattle shed to house his own and his father's cattle. He and the Deceased also agreed to rent various agricultural holdings jointly.
It is common ground that Elfed worked very long hours. He was allowed to reduce his hours with the Company around lambing and silage-making time in order to concentrate on farming. Otherwise, he undertook farming tasks before and after work and at the weekend. Elfed hired staff to work on the farm both for himself and his father and paid expenses on behalf of them both. In due course, his sons, Stephen, Geraint and Sion also helped.
Elfed was keen that his son, Geraint, should come to work with him on the farm. In 2012, Geraint gave up his job and went to work with his father on the farm for less than half of the wage that he had been receiving. The judge records that Geraint continually asked his father for a wage rise but his father became annoyed and told him not to ask because everything would be his one day ([11]).
Each of the Deceased's children received substantial lifetime gifts from him. Elfed received the farmhouse and 17 acres of land at Bwchanan where he lived with his family throughout the relevant period. The Deceased also gave plots of land to Gareth and Carys on which they built their homes. In 2008, the house which Gareth built was transferred to his ex-wife and shortly afterwards, the Deceased gave him another house which was rented out at the date of the trial.
The judge noted at [8] of his judgment that for many years, the Deceased had made his testamentary intentions clear. He intended to leave his shares in the Company to Gareth and Carys equally and the farmland to Elfed. The judge also found that there was an understanding between the Deceased and Elfed over many years that the farmland would be Elfed's on the Deceased's death and that he would inherit the land ([113]).
The Deceased executed his first will on 18 December 1990 which put those intentions into effect (the “1990 Will”). In outline, he left his shares in the Company to Gareth and Carys equally and his farmland to Elfed. His second wife was given the right to reside for life in his bungalow with remainder to his three children, who also shared the residuary estate equally. After his divorce from his second wife, the Deceased executed the 2005 Will. The provisions in the 1990 Will in relation to the shares in the Company, the farmland and the residuary estate were repeated. The Deceased's bungalow and garden and his personal effects were left to Carys. All other freehold and leasehold land was bequeathed to Elfed and a pecuniary legacy of £2,000 was given to each of his grandchildren.
It is common ground that from 2014, the Deceased experienced problems with his memory and that those problems fluctuated, and were to an extent affected by his physical condition from time to time. These included losing keys, forgetting to shut farm gates, being confused about the time of day and erratic driving ([12]). The judge also notes that: in 2014, the Deceased did not recognise his cousin, Ian, when out shopping ([13]); in May 2015, the Deceased shouted at his grandson, Geraint, for keeping sheep and cattle in the same field, which had been the practice for many years ([14]); and during the end of lambing in March 2016, the Deceased referred to lambs as heifers and...
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