A recent High Court case, MacDougall v Thomas, has highlighted the importance of obtaining professional legal advice when preparing a will and carefully considering who you appoint to act under a Lasting Power of Attorney (LPA).
The case involved a lengthy family dispute over a substantial estate, raising important questions about testamentary capacity, undue influence and the responsibilities of attorneys managing another person's financial affairs.
The Background to MacDougall v Thomas
Jeanne MacDougall died in April 2020, aged 91, leaving behind two children, Gary MacDougall and Sandra Thomas, and a substantial and complex estate. Jeanne had been diagnosed with Alzheimer's disease during her later years.
Following her death, a legal dispute arose concerning the validity of her 2011 will and a number of significant financial transactions and property transfers made during her lifetime.
Her son, Gary, challenged the 2011 will, which substantially favoured his sister, Sandra, and her husband, Philip Thomas. This represented a significant departure from Jeanne's earlier will, made in 2008, which had provided for a more equal distribution between her children.
Gary raised concerns about his mother's mental capacity when making the later will and alleged that undue influence had been exercised.
He also challenged several substantial gifts and property transactions, including some carried out using a Lasting Power of Attorney.
The resulting High Court proceedings examined both the validity of Jeanne's will and whether certain lifetime transactions had been properly authorised.
Why Was the Will Contested?
One of the central issues was whether Jeanne had the necessary mental capacity to make her 2011 will and whether its contents reflected her own wishes.
The will had been prepared by a tax adviser, rather than a solicitor. During the proceedings, concerns were raised about the absence of detailed attendance notes documenting Jeanne's instructions and the lack of a formal assessment of her testamentary capacity.
Despite these concerns, the High Court ultimately upheld the validity of the 2011 will.
The Court found that Jeanne had the necessary testamentary capacity and understood and approved the contents of the will. It also rejected the allegation that the will had been obtained through testamentary undue influence.
However, the case demonstrates the difficulties that can arise when there is insufficient contemporaneous documentation explaining the circumstances in which a will was prepared.
Why Professional Will Writing Advice Matters
When preparing a will, particularly one that could potentially lead to disagreement between family members, obtaining appropriate legal advice is extremely important.
This is especially relevant where a person intends to leave unequal shares of their estate to their children, exclude a family member from their will or make substantial changes to previous arrangements.
A regulated legal professional can help ensure that the will accurately reflects the person's wishes, that relevant concerns about mental capacity are considered and that appropriate records are maintained.
Where necessary, a medical assessment of testamentary capacity may also be recommended.
Although no process can guarantee that a will will never be challenged, careful preparation and proper documentation can provide valuable evidence if its validity is subsequently questioned.
The MacDougall v Thomas case illustrates how disputes over a person's intentions and mental capacity can result in lengthy and expensive court proceedings.
Lasting Powers of Attorney and the Risk of Undue Influence
The case also raised serious concerns about the use of a Lasting Power of Attorney.
A Lasting Power of Attorney allows an individual to appoint trusted people, known as attorneys, to make certain decisions on their behalf. A Property and Financial Affairs LPA can authorise attorneys to manage financial matters, subject to the terms of the document and their legal duties.
In MacDougall v Thomas, the Court examined several substantial property transfers and financial transactions involving Jeanne's daughter and son-in-law.
The Judge found that certain lifetime property gifts had been obtained through undue influence and that some transactions were affected by a lack of mental capacity.
The Court also found breaches of an attorney's fiduciary duties in relation to particular transactions.
These findings highlight the importance of ensuring that attorneys act within their authority and fulfil their responsibilities when managing another person's affairs.
Choosing the Right Attorney
When making a Lasting Power of Attorney, choosing who will act on your behalf is one of the most important decisions you will make.
Your attorney may be responsible for managing bank accounts, paying bills, dealing with property and making other significant financial decisions.
It is therefore essential to appoint someone you trust to act responsibly, honestly and in your best interests.
Attorneys must understand their legal responsibilities and the limits of their authority. They should maintain appropriate financial records, keep the donor's money separate from their own and ensure that any decisions or transactions comply with their duties.
Attorneys should also seek legal guidance where they are uncertain about their authority, particularly in relation to substantial gifts, property transfers or transactions that could benefit themselves or other family members.
Protecting Your Wishes and Your Estate
The MacDougall v Thomas judgment provides an important reminder of the potential consequences of disputes involving wills, mental capacity and Lasting Powers of Attorney.
While the Court ultimately upheld Jeanne's will, it reached different conclusions about a number of transactions undertaken during her lifetime.
Obtaining professional legal advice when preparing a will or making a Lasting Power of Attorney can help protect your wishes, clarify the responsibilities of those acting on your behalf and reduce the risk of future disputes.
At Patrick Lawrence Partnership LLP, our team can assist with wills, probate and Lasting Powers of Attorney, helping you understand your options and make informed decisions about your affairs.
For advice on preparing a will or making a Lasting Power of Attorney, contact Patrick Lawrence Partnership LLP to discuss your circumstances.
