Would Your Will File Survive Elliott v Bateson?
A professionally drafted, properly executed will has just been partly rewritten by the Court. Not because the testator lacked capacity, and not because anyone pressured him.
Because the file could not prove he understood what he signed.
In Elliott v Bateson & Anor (Re Estate of Mark Briant) [2026] EWHC 2440 (Ch), the court struck a life interest trust out of a 92-year-old's will, despite the drafter being an experienced solicitor whom the judge accepted was honest. Could this have happened to you?
The facts
Mark Briant and Rosemary Elliott had been together since the 1980s. Each had children from previous relationships. In 2012 they made mirror wills.
In March 2022, aged 92 and living with Parkinson's disease, Mr Briant moved into the home of his daughter and son-in-law while care arrangements were sorted out. They engaged a solicitor, who visited the house on 11 May 2022 to take instructions. A new will was signed later that month. Mr Briant died in October 2022, leaving an estate of around £248,000.
His instructions were to leave half his estate to his wife outright. The solicitor suggested something different: a life interest trust over her half, to protect it from care home fees, with the capital passing to the daughter's side of the family on her death.
The trust gave Mrs Elliott income only. There was no power to advance capital. On an estate made up almost entirely of cash, that meant very little money she could actually use.
Mrs Elliott, by then living with dementia, challenged the will through her son as litigation friend. She alleged lack of knowledge and approval, undue influence, and brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
What the court decided
The Court found that Mr Briant did not know and approve the life interest trust, and ordered that the wife should take her half outright, as he had originally instructed.
The undue influence claim failed. Contemporaneous social services records showed Mr Briant consistently expressing his own views, including when his daughter and son-in-law were not present. The 1975 Act claim fell away because Mrs Elliott had already got everything she could.
A professionally prepared, properly executed will normally carries a strong presumption that the testator knew and approved its contents. Here, the burden was on those defending the will to prove he understood it. They could not, because the evidence was not there.
Where the file fell short
A fundamental departure from instructions. The client asked for an outright gift. He got a trust. The judge treated this as a "fundamental change in the gift."
An attendance note that misdescribed the effect. The note recorded that Mrs Elliott "could have access" to the funds. However, under an income-only trust, she could not reach the capital to pay for care.
No record of the explanation. There was no evidence of a discussion about how much income the trust would produce, or what it would mean if she needed capital.
A follow-up letter that did not flag the change. The departure from the original instructions was not highlighted in writing.
An account that shifted. The solicitor's explanation differed between the attendance note, his witness statement and his oral evidence. Reliance on beneficiaries later agreeing to end the trust was a point that had not been explained to the client.
Weak evidence at signing. The will was not read over. Evidence that Mr Briant read it himself was inconsistent, and any reading was "probably cursory".
On whether the solicitor had explained the trust's implications, the judge's conclusion was blunt: from the evidence he had seen, the solicitor "simply did not do so".
The lesson: your file is your evidence
Nobody alleged dishonesty. Nobody said the solicitor gave bad advice in principle. The will failed because the file could not show what the client understood.
That is the uncomfortable truth for every will writer and estate planner. The only time anyone reads your file closely is when something has gone wrong. By then you may be years removed from the meeting, and your memory carries little weight. The file has to speak for you.
Red flags that should change how you document
This case had several. Each one raises the bar for what your file needs to show:
An elderly or frail client
Instructions taken at a beneficiary's home
A beneficiary making the initial contact or arranging the appointment
A recent change in living arrangements or family relationships
A spouse who may lose out, especially one who is vulnerable
A will that departs from an earlier will or the client's instructions
What a defensible file looks like
The client's own words. Record their original instructions as given, before any advice.
Every departure, flagged. If your advice changes the instructions, record why, what alternatives were discussed, and that the client chose the change.
Consequences in plain English. For a trust: can the beneficiary reach capital? Roughly what income will it produce? Who controls it? What happens if care is needed? Record that you explained each point and how the client responded.
An accurate attendance note. Read it back against the draft. If the note says one thing and the will does another, you have created evidence against your own will.
A signing meeting that tests understanding. Read over the key provisions. Ask the client to tell you, in their own words, what will happen. Note their answer.
Who was present, and when. Record whether beneficiaries were in the room, and that you saw the client alone.
None of this is new. What this case clearly shows is the possible implications if you don't do it.
Find the gaps before a judge does
Most practitioners believe their files are fine. Most have never had one read by someone with no reason to be kind.
You cannot mark your own homework. You know what you meant to record, so you read your notes and see what you remember, not what is written. A judge, an opponent's barrister or a regulator reads only what is there.
WillComply's independent file review puts a completed will file in front of that kind of reader, before it matters. Each file is assessed across six areas:
Terms of engagement
Instruction taking
Capacity
Drafting
Execution
Baseline client due diligence
You receive a written report that is objective and candid. It records what you are doing well, not just what needs fixing, so you can tighten your process across every file, not only the one reviewed.
The file in Elliott v Bateson did not need to be perfect. It needed to show that the client understood the trust. An independent review asks the question the court asked, while no one is looking over your shoulder and there is still time to fix your process.
Book a file review
To arrange an independent review of one or more of your will files, contact WillComply at charlotte@willcomply.co.uk.
This article is for general information only and does not constitute legal or compliance advice. The case summary is based on reported commentary on the judgment; readers should refer to the full judgment for detail. If you need help reviewing your own files or processes, please contact WillComply.
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