A judge has criticised a solicitor for failing to ensure an elderly client with Parkinson’s disease understood a major change made to his will instructions. His Honour Judge Michael Berkley, sitting in the High Court, described Matthew Knight of The Waring Partnership in Hampshire as an experienced professional, but said his omission “did not excuse.”
Court Criticises Solicitor Over Elderly Client’s Will
Mark Briant, who died in 2022 aged 92, “did not know and approve of the contents of the 2022 will because he had not had it explained to him sufficiently clearly” what a proposed change meant. The change altered a gift from an absolute transfer to a life interest trust. Under this arrangement, Mark’s wife, Rosemary, would not have access to the capital fund without the agreement of their daughter, Vanessa.
Mark and Rosemary cohabited from 1994 before marrying in 2011. Both were in their second marriages and each had three children. They executed mirror wills in 2012, but the judge noted these were “drafted by a family friend and have a number of would-be questions of their construction.” Mark was diagnosed with Parkinson’s disease in 2017 and his physical health began to deteriorate. Rosemary was later diagnosed with dementia in May 2022.
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Unbeknown Change to Wills Created Family Conflict
Mark moved to Hampshire in March 2022 to live with Vanessa and her husband Ian, while care arrangements were sought to allow him to return home to Dorset. He died before he could move back but had executed the new will unbeknownst to Rosemary or James, one of her children. The will left Rosemary a life interest in 50% of the estate, which, subject to that, went absolutely to Vanessa. The remaining 50% was divided among Vanessa’s children and grandchildren.
James brought proceedings claiming the 2022 will was invalid because Mark “did not know and approve its contents” or that it was procured by undue influence. There was no allegation that Mark lacked capacity to make the will. Rosemary made a separate claim under the Inheritance (Provision for Family and Dependants) Act 1975, arguing the will failed to make reasonable financial provision for her.
Vanessa and Ian were named as defendants in their capacity as executors of Mark’s estate, which was made up of nearly £250,000 in cash. The will was prepared by Mr Knight on Mark’s instructions, and although it was not read over to Mark by the solicitor before it was signed, it was duly executed.
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Solicitor Accepted Strong Conflict of Interest
Mr Knight accepted that Mark wished to gift his wife 50% of his estate. The solicitor then suggested putting this into a life interest trust to prevent the local authority from accessing the capital if Rosemary needed to enter a care home. Mr Knight was asked whether it was satisfactory that Rosemary would have to ask Vanessa for money, which would be entirely within her gift. He said he relied on Vanessa’s duty as trustee to act in the best interests of the beneficiary, but accepted there was a strong conflict of interest.
He accepted there was no direct power in the trust to encroach on the capital and that it created no interest for Rosemary in any of the capital; she was entitled to income only. In effect, Rosemary needed Vanessa to make a gift of any capital she sought, which would come directly out of Vanessa’s inheritance.
Mr Knight was asked whether he had explained to Mark that the ultimate beneficiary was going to be Vanessa. He pointed to the letter enclosing the draft will. However, he accepted that there was nothing in the attendance note or the manuscript attendance note to suggest he had explained this.
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It was suggested to Mr Knight that he had included provisions in the will that had not been in his instructions and then failed to flag up that he had done so. He replied “OK.” The judge found that Mark initially wished to reduce his gift to Rosemary to 50% of his estate – out of gratitude for the care provided by Vanessa and Ian –
Judge Finds No Proper Explanation Was Given
However, the judge was not satisfied that Mark knew and approved of the effect of the life interest trust that Mr Knight suggested. Given his client’s frailty and inexperience, Mr Knight needed “to carefully explain to Mark the implications of this fundamental change in the gift and to make sure that that explanation was noted.”
Impact on the will and future claims
The judge struck out the words in the 2022 will that created the life interest trust. This legal action removed the restriction on the 50% gift to Rosemary. The gift was then made absolute. This outcome meant Rosemary gained access to the capital fund immediately. Having done that, Rosemary had achieved “all that she could have achieved” in a claim under the 1975 Act, so there was no separate award under that.
