The background

The case involved the estate of Peggy Dalton, who died in March 2021 aged 93 after suffering from advanced dementia.

Just four months before her death, a new Will had been executed which dramatically altered her previous testamentary wishes. Under an earlier 2018 Will, her estate had largely been divided between her two surviving sons. However, the later 2020 Will left almost all of the estate to one son, Robert, and his wife Carly, effectively disinheriting the other son, Richard.

The court heard evidence that Robert and Carly had moved into Peggy’s property during 2020 and had become heavily involved in her financial affairs following the creation of a Power of Attorney.

Concerns were also raised about Peggy’s increasing isolation from wider family members, medical professionals and social services during the relevant period.

The court’s findings

Master Katherine McQuail declared the 2020 Will invalid on several grounds:

• lack of testamentary capacity;
• want of knowledge and approval;
• lack of proper execution;
• undue influence.

The court found that Peggy’s mental state had significantly deteriorated by late 2020 due to dementia. It was also found that false information regarding her son Richard appeared to have influenced her decision-making.

One of the most striking aspects of the judgment was the court’s criticism of the Will-writing process itself.

The judge noted that there was no evidence the Will writer had discussed the new Will with Peggy alone or obtained medical evidence to assess whether she had capacity.

Professional lesson 1: radical changes require careful exploration

Where a client wishes to make a significant departure from a previous Will, especially where a close family member is being excluded, practitioners should proceed carefully.

It is important to explore:

• why the client wishes to make the change;
• whether the decision appears rational and consistent;
• whether the client understands the effect of the change;
• whether anyone may be influencing the decision;
• whether further evidence or specialist advice is required.

Professional lesson 2: capacity must be properly considered

Testamentary capacity is a core requirement for a valid Will. Where there are concerns about dementia, cognitive decline, confusion or vulnerability, practitioners should take additional care.

This may include:

• careful questioning to assess understanding;
• recording the client’s answers in detail;
• considering the Banks v Goodfellow test;
• obtaining medical evidence where appropriate;
• being alert to fluctuating capacity;
• considering whether the “golden rule” should be applied.

Capacity should not be assumed simply because a client can hold a conversation or express a preference. The relevant question is whether the client understands the nature and effect of making a Will, the extent of their estate, and the claims of those who might expect to benefit.

Professional lesson 3: see the client alone

The case also highlights the importance of taking instructions independently.

Where a beneficiary, family member or attorney is present during instructions, practitioners should be alert to the risk of pressure or influence.

Best practice will often include:

• speaking to the client alone;
• checking whether the instructions are genuinely theirs;
• asking open questions rather than leading questions;
• recording who was present at each stage;
• not relying solely on a simple statement that the client is “not under duress”.

Professional lesson 4: isolation is a serious warning sign

The court placed significant weight on Peggy’s isolation from family members, social services and medical professionals.

Isolation can make a vulnerable client more dependent on one person or household. It can also limit the practitioner’s ability to understand the full context behind the client’s instructions.

Warning signs may include:

• a family member controlling appointments or communications;
• the client appearing dependent on one person for information;
• limited contact with wider family or professionals;
• major financial decisions being made shortly after someone moves in;
• unexplained allegations against excluded beneficiaries;
• conflicting accounts of family history or relationships.

Professional lesson 5: record the reasons for exclusion

Disinheriting a close family member is one of the clearest areas where careful file notes matter.

Practitioners should ensure the client’s reasons are explored and recorded. Where the reasons appear based on serious allegations, practitioners should consider whether those beliefs are rational, accurate and genuinely held.

In this case, the court heard that Peggy appeared to believe Richard had stolen money from her and had attempted to murder Robert. The court found that the alleged attempted murder had no basis in reality.

That raised serious questions about Peggy’s understanding, the information she had been given, and whether the Will reflected her true independent wishes.

Why this matters for Will writers

This case is a powerful reminder that the validity of a Will depends not only on the document itself, but on the process behind it.

A professionally drafted Will should be supported by:

• clear instructions;
• proper capacity assessment;
• evidence of knowledge and approval;
• careful consideration of undue influence risks;
• accurate notes of who was present;
• documented reasons for major changes or exclusions;
• appropriate medical or legal input where needed.

The court’s criticism of the Will writer in this case demonstrates how heavily practitioners’ notes, procedures and professional judgement may be scrutinised when a Will is later challenged.