A High Court judge has removed a life trust from a will after deciding the estate-holder didn’t have a “fundamental change in the gift” explained to him properly by the solicitor who drew it up.
Elliott v Bateson & Anor [2026] was heard by HHJ Michael Berkley, sitting as a judge of the High Court, at the business and property court in Bristol.
It concerned claims brought by Rosemary Elliott, who has dementia, with her son James ‘Jim’ Elliott, acting as her friend in litigation, regarding her late husband’s will.
Her husband, Mark Briant, had changed his will in 2022, when he was 92, shortly before he died. The couple had been together since the 1980s, and each had three children from previous relationships.
The defendants to the claims were Vanessa and Ian Bateson, Mark’s daughter and son-in-law.
The case examined joint claims: firstly, that Mark’s 2022 will was invalid because he did not know and approve its contents, or that it was procured by undue influence; secondly, that under the Inheritance Act 1975, the will failed to make reasonable financial provision for Rosemary.
Mark and Rosemary had initially made mirror wills in 2012 with provision included only for her children, and not his.
The 2022 will was drawn up while Mark was living with his daughter, Vanessa, and son-in-law, Ian, and following a falling out with his stepson, Jim.
Rosemary and Mark didn’t own property, and Mark’s estate amounted to £248,367.37 in cash.
In the 2022 will, Mark left a life interest of 50% of his estate to Rosemary but, subject to that, to Vanessa. The other 50% was to be divided up between Vanessa and her children and grandchildren.
Mark had been diagnosed with Parkinson’s some years earlier, and his physical health began deteriorating in 2017. Rosemary provided much of his care, with support from Jim and his wife Sharon, who lived nearby, for many years.
After a fall and a series of issues with appropriate care provision, Mark moved into his daughter Vanessa’s house in March 2022. Rosemary was diagnosed with dementia in May 2022.
On 11th May 2022 a solicitor attended Vanessa’s house and instructions were given by Mark in their presence to make the new will.
An Adult Services Personal Assessment by Hampshire County Council record from around this time said Mark was able to communicate clearly, and also that he was “estranged from his stepson [Jim] and does not want contact with him”.
After a series of hospitalisations, Mark passed away on 3rd October 2022.
The High Court examined the evidence and Judge Berkley pointed out that although Mark was 92, with Parkinson’s disease and in a state of “severe frailty”, there were no allegations in this that he did not have capacity to make the 2022 will.
He added that “the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed.”
The “basic questions on this issue” was whether Mark “had known and approved” the contents of the 2022 will.
The 2022 will was written by Matthew Knight, a solicitor from the Waring Partnership, engaged on Mark’s behalf by his daughter and son-in-law.
The court heard that Knight had suggested placing the 50% of Mark’s estate intended for Rosemary in a “life interest trust” to protect it from care home fees. She could access income from it, but the sum itself would go to Mark’s daughter after Rosemary’s death.
Judge Berkley described the trust as a “fundamental change in the gift” to what was described in a note presented as evidence of Mark’s wishes.
He said “it was necessary for Mr Knight to carefully explain to Mark the implications of this fundamental change in the gift and to make sure that that explanation was noted”.
The judge said: “From the evidence that I have seen and read [Knight] simply did not do so, and from what he did explain, Mark would have been misled.”
Judge Berkley said: “I accept that Mark initially wished to reduce his gift to Rosemary to 50% of his estate…”
“However, I am not satisfied that he knew and approved of the effect of the life interest trust that Mr Knight suggested.”
As a result, the court severed the trust in order that Rosemary can receive what Mark intended for her: the 50% of his estate in cash.
The judge did not find any evidence of “undue influence” suggested by the claimants, and having removed the trust, decided it was not appropriate to award Rosemary anything under the 1975 Inheritance Act.
