On 23 September 2026, in Elliott v Bateson [2026] EWHC 2440 (Ch), the High Court held that a testator did not know and approve his Will after the solicitor had advised on a different provision in the Will to what the testator had instructed.
A recent probate claim in the High Court in Bristol has caught the (contentious probate industry) headlines. It unusually concerned a want of knowledge and approval claim brought in the context of a professionally drafted Will.
Rosemary Elliott, the widow of Mark Briant, brought the claim. She challenged a Will made shortly before her husband’s death in 2022. The principal issue for determination by the court was whether or not Mark knew and approved the contents of the Will, and whether or not it had been procured by undue influence of Vanessa Bateson, who was one of Mark’s children from an earlier marriage. She and her children stood to benefit majorly under the Will. Rosemary also brought a financial provision claim under the Inheritance (Provision for Family and Dependants) Act 1975, in the alternative.
Background to the Dispute
Mark and Rosemary had made mirror Wills shortly after their marriage in 2011 and they each had children from a prior marriage.
In 2022, Mark went to see his solicitor to make a new Will, and instructed that 50% of his estate should pass to his wife, Rosemary. During consultation with the solicitor, Matthew Knight, advice was given to Mark that he should create a life interest trust for Rosemary instead. This would provide Rosemary with income from that 50% of the estate for her life, with the capital then to pass to his chosen beneficiary, Vanessa, upon Rosemary’s death.
Rosemary claimed:
- Mark did not know and approve the contents of the Will
- The will was procured by undue influence exerted by Vanessa
- In the alternative, she should receive further provision under the Inheritance (Provision for Family and Dependants) Act 1975
The estate was relatively modest, valued at circa £250,000.
Did the Testator Understand His Will?
The court accepted that Mark had capacity to make his Will, and found the solicitor (who had prepared the Will) to be credible, honest and experienced. Capacity was not in doubt at all, and as the will was overseen professionally it created a significant presumption that Mark knew and approved the Will. The real question though was whether Mark had truly understood the effect of the life interest trust.
It was held that:
- The life interest trust was a significant departure from Mark’s original instruction to leave 50% of his estate to his Rosemary absolutely
- The solicitor had not adequately explained that Rosemary would have no automatic right to the capital of the fund
- The will file did not show with any degree of clarity or certainty that the consequences of the will trust were fully explained to Mark
- The will was not read through with Mark at the point of execution, and there was some doubt that Mark had independently read and understood the key parts to the will that affected Rosemary
It followed that Rosemary’s claim was upheld.
Remedy
The court declared the offending provisions of the 2022 Will to be invalid (but not the whole of the Will). The court severed those provisions from the Will, which effectively served to transpose Rosemary’s life interest trust into an outright gift of 50% of the estate. The court felt that this was Mark’s true intention.
Summary
The undue influence and IPFDA claims both failed. The former failed on the evidence. The latter was pleaded in the alternative, and so was not necessary to consider.
The key takeaway here is that, notwithstanding that the testator with capacity has instructed a solicitor to prepare a Will, this is not conclusive evidence of knowledge and approval. The case is a rarity, and its specific facts are ultimately what led the court to find that Mark’s true intentions did not manifest in the Will that he made. Mark had attended the solicitor with clear instructions; the solicitor had introduced a substantial change/departure from what Mark had intended; there was insufficiently clear evidence that the change (including the practical consequences) had been fully explained and understood.