Jacqueline Emmerson has over thirty years legal experience in dealing with Wills/Probate, Lasting Powers of Attorney, Court of Protection and Mental Incapacity cases. She manages the affairs of older clients who have no one to assist them, often recovering thousands of pounds in overpaid utility bills and backdated claims for state benefits. Together with her Clear and Clean team she can turn around houses very quickly often presenting them for sale at tens of thousands more than they were initially valued.
Jacqueline’s team are the proud winners of Private Client Team of The Year at the British Wills and Probate Awards. Jacqueline has since gone on to be a judge for these prestigious awards.
Jacqueline writes articles, gives talks, appears on radio and has produced videos in relation to her expertise in this area of law. She is a Dementia Friend and member of Gosforth Dementia Group. Emmersons is the only Solicitors firm in the country to offer Slow Shopping, for those with physical or mental incapacity or impairment. This was set up by Jacqueline.
Just email your query and telephone number to jacqueline.emmerson@emmersons-solicitors.co.uk and Jacqueline will get back to you.
If you have been excluded from a will or you may not inherit under the laws of intestacy yet you were maintained by the deceased or lived with and cared for the deceased as if you were married (cohabitee) then you may have a claim.
As a result of developments in society many more families are blended and much more complex relationships exist than perhaps did in years gone by. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals can claim reasonable financial provision from a deceased person's estate if they believe they have not been adequately provided for.
The following categories of individuals are eligible to make a claim under the Inheritance Act 1975:
When assessing claims, the court will consider various factors, including the financial needs of the claimant, the size of the deceased's estate, and the relationship between the claimant and the deceased. The court has the discretion to award a range of provisions, such as lump sum payments or ongoing financial support.
It is important to note that claims under the Inheritance Act must typically be made within six months of the grant of probate. Seeking legal advice promptly is crucial if you believe you may have a valid claim.
The research highlights three key factors behind the increase: an ageing population and increased vulnerability, predatory marriages and complex family structures, and poorly drafted wills in part due to the legacy of the Covid‑19 lockdown.
With almost 20% of the UK population now aged 65 or over, the implications for testamentary capacity and susceptibility to influence are real. The increase in diagnosis of dementia has led to more wills being challenged on the grounds of capacity or undue influence.
More people entering second or third marriages later in life are resulting in a rise in complex family structures and triggering disputes between children and partner of the deceased. In more serious cases predatory marriages – in which younger people exploit vulnerable testators – are leading to greater scrutiny of the circumstances in which wills were executed.
Wills can face various challenges, including issues of validity, misunderstandings among beneficiaries, and improper execution, which can complicate the estate distribution process.
Validity Issues: For a will to be legally valid, the testator must be of sound mind when signing, and the will must be properly witnessed. Common problems include wills that are not signed or witnessed according to legal requirements, which can lead to disputes during probate.
Undue Influence: This occurs when someone exerts pressure on the testator to change their will in a way that does not reflect their true wishes. This can be particularly problematic if the testator is vulnerable, such as being elderly or in poor health.
Ambiguities in Language: Poorly drafted wills with vague or unclear language can create serious disputes among beneficiaries. For example, if a will states, "divide my estate equally among my children" without specifying whether stepchildren are included, disagreements may arise.
Multiple Wills: If multiple versions of a will are found, it can lead to confusion and disputes over which document should be enforced. It is essential to clearly state that a new will revokes all previous versions to avoid such conflicts.
Failure to Update the Will: Life changes such as marriage, divorce, or the birth of children can make a will outdated. If a will is not updated to reflect these changes, it may no longer align with the testator’s intentions, leading to complications during probate.
Mistaken Beliefs: Family members may have different interpretations of the testator's intentions, leading to disputes. Misunderstandings can arise from informal discussions or unclear language in the will A recent case Leonard v Leonard illustrates the challenges that can be brought:
Dr Jack Leonard, a successful engineer and businessman, executed a will in 2007 leaving his residuary estate in five equal shares between his four children from his first marriage and his second wife, Margaret. In October 2015, aged nearly 84, he signed a new will at home, witnessed by his gardener and a step-grandson’s husband, which divided his residuary estate seven ways (four sevenths to his children, three sevenths to Margaret’s family) subject to a life interest trust for Margaret, and contained complex provisions regarding his US property and hotchpot calculations.
The 2015 will had been prepared over two years by Ms Carol Wells, a chartered tax adviser (not a solicitor) at Irwin Mitchell. She had only two face-to-face meetings with Jack and did not see him in person for almost a year before execution. Jack was diagnosed with vascular dementia in March 2016, having suffered confusion and been admitted to hospital in July 2015. Neuropsychological testing in August 2015 identified ‘mild to moderate’ cognitive impairment and dysexecutive syndrome. Jack died in March 2019. His estate was worth approximately £5.4 million.
The court had to decide two issues: (1) whether Jack had testamentary capacity when executing the 2015 will on 28 October 2015, applying the test in Banks v Goodfellow (1870) LR 5 QB 549; and (2) whether he knew and approved the contents of the 2015 will. The Defendants raised a fallback argument based on the rule in Parker v Felgate (1883) 8 PD 171, contending that Jack had capacity when giving final instructions on 2 July 2015.
The Claimants (Jack’s children) argued that Jack showed signs of cognitive decline from 2013, that his medical records evidenced significant impairment, that the will-making process was littered with errors and memory lapses, and that Ms Wells failed to follow the Golden Rule despite obvious warning signs. They contended the 2015 will’s treatment of Andrew (a long-term financial dependant), its failure to secure Susan’s occupation of the Findon Property, and various inconsistencies with Jack’s instructions, all demonstrated a lack of capacity and knowledge and approval.
The Defendants (Margaret and her family) argued Jack had complete testamentary freedom, that his desire to benefit Margaret and her family was unsurprising given their close relationship, that evidence from his professional advisers (Ms Wells and Barclays) confirmed his capacity, and that the lengthy drafting process demonstrated his engagement and understanding.
Testamentary Capacity
Mrs Justice Joanna Smith DBE held that the evidential burden lay on the Defendants to prove capacity given the medical evidence, experts’ agreement that Jack suffered from dementia at the relevant time, and surprising features of the will. Applying the four limbs of Banks v Goodfellow:
Limb 1 (understanding nature and effect): The court found Jack could not comprehend the nature and effect of the complex 2015 will. He had consistently wanted a simple will leaving everything to Margaret, repeatedly struggled to understand the trust structures (as recorded in the October 2014 telephone conference note that he was ‘struggling to understand some of the provisions notwithstanding that they have been explained to him previously’), and could not understand the interaction of the revocation clause with the hotchpot provision affecting Andrew’s inheritance of the US property.
Limb 2 (extent of property): The court found Jack retained a general idea of his assets.
Limb 3 (claims of beneficiaries): The court found Jack could comprehend the moral claims on his estate, including those of Margaret’s family, Andrew, and Susan.
Limb 4 (disorder of mind): The court found Jack was suffering from dementia which prevented the exercise of his natural faculties, particularly regarding the provisions affecting Andrew, whose inheritance of the US property was left in an uncertain and potentially detrimental state absent a US will that Jack had failed to pursue.
The judge gave little weight to Ms Wells’ evidence of Jack’s capacity, noting her failures to apply the Golden Rule, to consult her supervisor, to see Jack alone, or to arrange a meeting when he was obviously struggling with the draft provisions. The Barclays evidence was similarly compromised by ‘self-certifying’ policies and Ms Bultitude’s own concerns recorded in May 2015 that Jack had ‘slowed down’.
Parker v Felgate
The court rejected this fallback argument, finding Jack lacked capacity even on 2 July 2015 when giving his final instructions, that the 2015 will did not give effect to those instructions in any event, and that there was no evidence Jack understood on 28 October 2015 that he was executing a will for which he had given instructions.
Knowledge and Approval
The court held that, even assuming capacity, the Defendants had failed to discharge the burden of establishing knowledge and approval. Key provisions including clause 9(f) (Andrew’s hotchpot) and the revocation clause had never been properly explained to Jack and did not reflect his testamentary intentions. The court rejected the Defendants’ suggestion that clause 9(f) could simply be removed to save the will.
Implications
The decision reinforces the importance of the Golden Rule articulated by Briggs J in Re Key Deceased [2010] 1 WLR 2020: professionals preparing wills for elderly or seriously ill testators should arrange medical capacity assessments with contemporaneous records. The judgment illustrates that non-compliance does not automatically invalidate a will but significantly reduces the weight given to the drafter’s assessment of capacity.
The case confirms that the Banks v Goodfellow test remains the correct standard for retrospective capacity assessments, with the fourth limb operating as a separate element concerned with ‘mood as much as cognition’, not merely insane delusions. The judgment also reinforces that testamentary capacity is transaction-specific: the more complex the will and the testator’s circumstances, the greater the cognitive function required.
The decision demonstrates the evidential value of contemporaneous documents in capacity disputes, consistent with the guidance in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), particularly where witness recollections span many years and competing family perceptions diverge sharply. It also shows judicial scepticism of professional advisers’ capacity assessments where prudent safeguards have been omitted.
For practitioners, the case is a cautionary tale about the drafting process itself: over two years, multiple drafts, failures to implement client instructions accurately, lack of face-to-face meetings, and inadequate explanation of complex provisions (trusts, revocation clauses, hotchpot provisions, powers to appoint capital) all contributed to the court’s finding that the testator did not understand what he was signing. The judgment has particular significance for those advising testators with dementia, fluctuating capacity, or complex family arrangements involving second marriages and step-families.
Verdict: The court pronounced in favour of the 2007 Will and against the force and validity of the 2015 Will, finding that Dr Jack Leonard lacked testamentary capacity when executing the 2015 Will and did not know and approve its contents. The rule in Parker v Felgate did not assist the Defendants. The 2007 Will was therefore admitted to probate.
Leonard v Leonard [2024] EWHC 321 (Ch)
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