A signature is not enough: Wills, attorney duties and the safeguards that matter

Confirmed legal decision

A High Court judgment on knowledge and approval

On 23 September 2026, the High Court handed down its judgment in Rosemary Anne Davina Elliott v Vanessa Anne Bateson and another [2026] EWHC 2440 (Ch).

The dispute concerned the 2022 Will of Mark Briant.

Mark was 92 and had Parkinson’s disease. His wife, Rosemary, had been diagnosed with dementia. Mark’s estate was worth approximately £248,000 and consisted mainly of cash and investments.

The court accepted that Mark originally intended to leave 50% of his estate to Rosemary outright. The remaining half would pass to his daughter and members of her family.

During the Will appointment, the solicitor suggested that Rosemary’s share could instead be placed into a life-interest trust. According to the solicitor’s attendance note, this was presented as a way for Rosemary to have access to the funds while preventing them from being used towards care-home fees.

The Will that was eventually prepared did not give Rosemary access to the underlying capital.

It entitled her to the income generated by that half of the estate during her lifetime. The remaining capital would then pass to Mark’s daughter.

The trust did not contain an express power allowing the trustees to advance capital to Rosemary. Any practical access to the capital would therefore have depended upon Mark’s daughter being willing and legally able to give away part of her prospective inheritance.

The full High Court judgment sets out the evidence and the court’s reasoning.

Three separate requirements

Capacity, execution and knowledge are different questions

The case is useful because it demonstrates the distinction between three different requirements:

• whether the person had testamentary capacity;
• whether the Will was signed and witnessed correctly; and
• whether the person knew and approved its contents.

There was no allegation in this case that Mark lacked testamentary capacity.

The Will had also been professionally prepared and properly executed.

Those facts will ordinarily provide strong evidence that a Will reflects the person’s intentions. They do not, however, make the question of knowledge and approval disappear.

Knowledge and approval is concerned with whether the contents of the Will truly represent the person’s testamentary intentions.

It does not require the person making the Will to understand every technical expression or reproduce the document from memory. It does require them to understand the practical effect of the provisions they are approving.

Where the circumstances raise suspicion, more may be required to demonstrate that the Will genuinely reflects the person’s wishes.

When might additional care be needed?

A fuller explanation and stronger supporting record may be particularly important where:

• a provision is substantially different from the client’s original instructions;
• the change was suggested by the practitioner rather than requested by the client;
• the provision involves a trust or another structure unfamiliar to the client;
• the practical effect differs from the way it was described;
• the person is physically frail or may need additional time and support;
• a beneficiary is present when instructions are given; or
• the arrangement creates a potential conflict between beneficiaries or trustees.

None of these factors automatically invalidates a Will.

They do, however, affect the explanation and evidence that may be needed to demonstrate that the client understood and approved what was being done.

What concerned the court?

The court accepted that the solicitor was experienced, honest and intended to provide appropriate advice.

The difficulty was not dishonesty. It was the difference between what Mark was told, what the Will actually provided and what had been recorded.

Mark’s original instruction was to give half of his estate to Rosemary outright.

The solicitor introduced the idea of a life-interest trust and recorded that Rosemary would have “access to” the funds while they would be protected from care-home fees.

The completed Will gave Rosemary the income from the trust fund but no right to the capital.

There was no recorded discussion about the level of income the fund was likely to generate. There was also no adequate explanation of how Rosemary might gain access to capital if she needed it.

The evidence that Mark had read the Will was inconsistent. Even if he had read it, the judge concluded that its wording would not necessarily have alerted a non-lawyer to the difference between what had been explained and the legal effect of the document.

The court found that Mark had not known and approved the effect of the life-interest trust.

The separate allegation of undue influence was rejected.

The judge found that the evidence did not establish that Mark’s wishes had been overborne by coercion. The judgment confirms that undue influence in a Will dispute remains a demanding allegation to prove.

A court can therefore conclude that somebody had capacity, acted freely and signed a Will correctly, but still find that they did not understand or approve the effect of a particular provision.

The Elephant Legal view

My professional interpretation

The judgment should not be read as suggesting that life-interest trusts are inherently unsuitable.

A properly structured trust may be appropriate in many circumstances. It can help balance the needs of a surviving spouse or partner with the wish to preserve capital for other beneficiaries.

The professional failure arises when the structure does not achieve what the client believes it achieves—or when the practitioner cannot demonstrate that its practical effect was properly explained.

It is not enough for a client to hear the name of a trust, agree that it sounds sensible and sign the resulting Will.

They need to understand questions such as:

• What will the immediate beneficiary actually receive?
• Will they receive income, capital or both?
• Can the trustees release capital?
• Is that a legal power or merely an expectation that somebody will make a separate gift?
• Who receives the remaining fund when the beneficiary dies?
• Does anybody involved have a potential conflict of interest?
• What disadvantages or limitations accompany the proposed structure?
• Does it achieve the client’s real objective?

A signed attendance note recording that the client was “happy” with a proposal may not answer those questions.

The stronger evidence is a clear record of the objective, the available options, the explanation given and the client’s own understanding of the outcome.

What should the profession record?

Where a provision is complex or differs materially from the client’s initial instructions, the file should ordinarily make the following points clear.

That question is not a legal test and should not become a mechanical exercise. It can, however, help identify a difference between the document the practitioner intends to prepare and the outcome the client believes they have approved.

The importance of the approval letter

A draft Will and its accompanying explanation should do more than repeat technical wording.

Where the final document departs from the client’s original instructions, the explanation should identify that change clearly.

It should state:

• what the client originally proposed;
• what the new structure does differently;
• why the alternative has been recommended;
• what each beneficiary will and will not be entitled to receive; and
• what decisions will depend upon trustees or other people in the future.

The approval letter is not simply administrative correspondence.

It may later become important evidence of what was explained and whether the client made an informed decision.

Reported safeguarding concerns

Concerns reported about Sir Ranulph Fiennes’ care

A separate development this week concerns the widely reported circumstances of Sir Ranulph Fiennes.

On 26 September, The Guardian reported that Sir Ranulph’s stepson had launched a crowdfunding appeal to obtain specialist legal advice in an attempt to locate and safeguard him.

The report stated that Sir Ranulph’s wife holds a Lasting Power of Attorney relating to his care and that his stepson wishes to challenge or revoke it.

The Independent also reported concerns raised by family members, friends and a care provider.

According to that report, an email from Care Inspectorate Wales stated that Sir Ranulph had been deprived of his liberty without an authorisation reflecting his residence and the restrictions in place at the time.

The reports contain serious allegations about his care, contact with other people and the operation of the LPA.

They remain allegations.

There has been no published Court of Protection judgment determining the dispute, and the Office of the Public Guardian stated that it could not comment on an individual case. The Independent also reported that it had been unable to contact Sir Ranulph’s wife for comment.

Authority and responsibility

What does a Health and Welfare LPA authorise?

A Health and Welfare Lasting Power of Attorney can allow an attorney to make decisions about matters including:

• the donor’s daily routine;
• medical care;
• care and support arrangements;
• where the donor should live; and
• life-sustaining treatment, where the LPA gives the appropriate authority.

The attorney can only make a particular health or welfare decision when the donor lacks the mental capacity to make that decision themselves.

Mental capacity is decision-specific.

A person may be unable to make one complex decision while remaining able to make other decisions. Capacity may also fluctuate or improve.

The existence of an LPA does not transfer every decision permanently from the donor to the attorney.

The official guidance for Health and Welfare attorneys explains when the authority can be used and the types of decisions it may cover.

An LPA is not unrestricted control

An attorney does not acquire unrestricted control over the donor’s life.

When acting under an LPA, the attorney must follow the Mental Capacity Act 2005 and the terms of the document.

They must:

• support the donor to make their own decision wherever possible;
• consider capacity in relation to the particular decision;
• act in the donor’s best interests;
• take account of the donor’s past and present wishes, feelings, values and beliefs;
• involve the donor in the decision as far as reasonably possible;
• consult relevant people where appropriate;
• consider whether the objective can be achieved in a less restrictive way; and
• remain within the authority provided by the LPA.

A best-interests decision is not simply the decision the attorney personally prefers.

It should be based on the individual donor: their circumstances, wishes, relationships, values and welfare.

The GOV.UK guidance on making decisions for somebody else explains these principles.

Communication and record-keeping

The official guidance states that a Health and Welfare attorney should tell people involved in the donor’s care when they begin making decisions. This can include family members, friends, healthcare staff, care workers and social-care professionals.

That does not mean every relative has a right to control the decision or receive confidential information.

It does mean that excluding every other person from the process may require careful justification, particularly where those people know the donor well and can provide relevant evidence of their wishes, feelings and values.

Attorneys should also keep records of important decisions, including:

• the decision made;
• when it was made;
• the information considered;
• who was consulted;
• any disagreement that arose; and
• why the decision was considered to be in the donor’s best interests.

The official guidance on attorney records and duties explains that the Office of the Public Guardian and the Court of Protection may examine an attorney’s decisions.

Safeguarding and oversight

Deprivation of liberty requires its own safeguards

A Health and Welfare LPA does not, by itself, provide all the legal authority that may be required for restrictive care arrangements.

Where a person is under continuous supervision and control, is not free to leave and cannot consent to the arrangements, a deprivation of liberty may arise.

Care homes and hospitals may then need to obtain the appropriate legal authorisation.

The purpose of the Deprivation of Liberty Safeguards is to ensure that restrictions are:

• necessary;
• proportionate;
• in the person’s best interests;
• independently assessed;
• subject to review; and
• capable of challenge.

The attorney’s involvement remains important, but the LPA does not remove the need for the separate legal safeguard.

The Deprivation of Liberty Code of Practice explains the framework applying in England and Wales.

What happens when concerns are raised?

The Office of the Public Guardian can investigate certain concerns about an attorney where the donor lacks capacity to deal with the issue themselves.

A concern may be reported by:

• the donor;
• a family member or friend;
• a care professional;
• a bank or other organisation; or
• a member of the public.

Relevant concerns can include allegations that an attorney is:

• failing to act in the donor’s best interests;
• not performing the role properly;
• abusing their position;
• misusing money or property;
• failing to follow the terms of the LPA; or
• acting in a way that affects the donor’s human or civil rights.

The OPG may request further information, investigate the circumstances or apply to the Court of Protection.

The Court of Protection can consider disputed decisions, give directions and, where appropriate, remove an attorney.

The official process is explained in the GOV.UK guidance on reporting concerns about an attorney, deputy or guardian.

My professional interpretation

The reporting surrounding Sir Ranulph should not be used as an argument against making an LPA.

Without an LPA, somebody who loses capacity may have no personally chosen representative with authority to participate in important health and care decisions. An application to the Court of Protection may instead be required.

The lesson is about the quality of the planning.

Choosing an attorney should not be treated as completing a name and address section on a form. The donor is selecting somebody who may later make decisions at a time when the donor cannot protect their own position.

Trust is essential, but it should not be the only consideration.

A prospective attorney should also be able to:

• listen to and respect the donor’s wishes;
• communicate constructively with relatives and professionals;
• separate the donor’s interests from their own views;
• manage disagreement without using the LPA as a means of control;
• keep appropriate records;
• recognise the limits of their authority; and
• seek professional advice when a decision becomes legally or medically complex.

The appointment of more than one attorney can sometimes provide shared experience and accountability. It can also create delay or conflict if the attorneys cannot work together.

There is no single arrangement that will be suitable for every donor.

The important point is that the choice and decision-making structure should be considered, explained and recorded.

What should prospective attorneys understand?

The common thread

The High Court judgment and the reports concerning Sir Ranulph arise in very different circumstances.

One concerns whether a Will reflected a person’s informed intentions. The other concerns allegations about how authority under an LPA may have been exercised.

Both demonstrate that the existence of a signed legal document is only the starting point.

A Will should record decisions that the client has understood and approved.

An LPA should give carefully chosen attorneys authority within a framework that continues to protect the donor’s wishes, participation and rights.

Professional involvement should therefore be measured by more than whether the document was completed correctly.

It should also be measured by:

• the clarity of the explanation;
• the quality of the client’s understanding;
• the reliability of the records;
• the identification of potential conflicts;
• the information given to attorneys and trustees;
• the recognition of professional boundaries; and
• the willingness to involve another adviser or authority when necessary.

Status check

What has not changed this week?

None of the developments covered in this briefing changes the standard legal requirements for preparing or registering a Will or Lasting Power of Attorney.