“No Credibility”: What the Dalton Will Dispute Teaches Us About Undue Influence and Dementia

A recent High Court case is a stark reminder of why how a will is made matters just as much as what it says. A 93-year-old woman with advanced dementia signed a new will, just months before she died, that cut out one of her two sons and handed almost her entire £600,000 estate to the other son and his wife. The court refused to uphold it, and was scathing about the will writer who oversaw it.

Here are the facts, the law the court had to apply, and how the judge reached her decision.

1. The Facts

Peggy Dalton was 93 years old and living with dementia. For most of her life her wishes had been straightforward: a will made in 2018 divided the bulk of her estate, worth around £600,000, between her two sons, Richard and Robert.

That picture changed dramatically in 2020. Robert and his wife, Carly, moved into Peggy's home and took over her affairs, including a power of attorney that put Robert in control of her finances. In November 2020 a new will appeared. It swept away the even-handed 2018 arrangement and left almost everything to Robert and Carly, disinheriting Richard entirely.

By February 2021 Peggy's dementia was so advanced that she was admitted to a care home. She died the following month, in March 2021.

Richard challenged the November 2020 will. The case came before Master Katherine McQuail in the High Court. The court heard that Robert and Carly had kept Peggy socially isolated from the rest of her family and from medical professionals, and that she had come to believe things about Richard that were simply untrue, including that he had tried to murder Robert and had stolen £100,000 from her. There was, the court found, no basis in reality for any of it.

2. The Law

A will can be challenged on several separate grounds. Importantly, these are independent of each other. A will can fail on any one of them. In the Dalton case the court considered four.

Due execution: was the will signed and witnessed properly?

Every will must meet the formal signing rules in section 9 of the Wills Act 1837. In short, the will must be in writing and signed by the person making it (the "testator"), who must intend their signature to give effect to the will, and that signature must be made or acknowledged in front of two witnesses present at the same time, who then each sign. If those steps are not properly followed, the will is invalid no matter how genuine its contents.

Testamentary capacity: did the person understand what they were doing?

To make a valid will, a person must have the mental capacity to do so. The test is not whether they had dementia, but whether, at the relevant time, they could understand a few essential things. This classic test comes from the Victorian case Banks v Goodfellow (1870) and still governs today. The person must understand that they are making a will and what it does; the rough extent of what they own; and who might reasonably expect to benefit (and therefore who they are leaving out). And they must not be suffering from a disorder of the mind that poisons their decisions. Dementia does not automatically remove capacity, but the more advanced it is, the harder this test becomes to satisfy.

Knowledge and approval: did they actually know and agree to the contents?

Separately from capacity, the person must genuinely know and approve of what their will says. Normally the court assumes this is the case. But where the circumstances are suspicious (for example, where the person who benefits most was closely involved in arranging the will), that assumption falls away, and those putting the will forward must positively prove that the deceased understood and approved it.

Undue influence: was the will the product of coercion?

This is the most serious allegation, and the hardest to prove. In the context of wills, "undue influence" means coercion: pressure that overpowers the free will of the person making the will, so that the document reflects someone else's wishes, not their own. Persuasion, or even being a nuisance, is not enough. Unlike some areas of law, there is no automatic presumption of undue influence in will cases. It must be proved on the evidence. Because coercion usually happens behind closed doors, the courts accept that it can be proved by circumstantial evidence: the surrounding facts can be enough if undue influence is the most likely explanation. The leading statements of these principles appear in cases such as Wingrove v Wingrove (1885), Edwards v Edwards (2007) and Schrader v Schrader (2013). The last is a case, much like Dalton, where a son was found to have unduly influenced his elderly mother's will.

This is also an area Parliament may soon change: the Law Commission has recommended shifting the burden of proof where there are reasonable grounds to suspect undue influence. This is one of the reforms we cover in our guide to the biggest shake-up in will law for nearly 200 years.

3. Applying the Law to the Facts and the Judge's Findings

Master McQuail set the November 2020 will aside, finding that it failed on all four grounds above. Any single ground would have been enough; together they made the conclusion overwhelming.

On capacity and knowledge and approval, the evidence of advanced dementia, combined with the highly suspicious circumstances in which the will was produced, meant the court could not be satisfied that Peggy truly understood and approved a document that disinherited one of her two children.

On undue influence, the judge found that Robert and Carly had coerced Peggy. The circumstantial picture was compelling: they had moved into her home, isolated her from her wider family and from doctors, controlled the flow of information reaching her (including her credit cards and finances), and fed her false beliefs about Richard that turned her against him with no foundation in fact. In one of the most striking passages, the judge concluded that Peggy's "volition was subsumed by Robert and Carly and the will was the product of their wishes, not hers." That is the essence of undue influence: the will was not really Peggy's at all.

The court reserved particular criticism for the will writer. A professional present at the making of a will is meant to be a safeguard: a neutral person who checks that the testator understands what they are doing and is acting freely. Here, the judge found, that safeguard failed completely. The will writer did not discuss the new will with Peggy on her own, away from Robert and Carly; gathered no medical evidence about whether she had the capacity to make a will, despite her age and condition; and relied on nothing more than his own note that she was "not under duress." The judge gave that note no weight at all, finding she could give "no credibility" to his ability to assess whether improper influence was at work. It is a pointed reminder that ticking a box is not the same as carrying out a proper assessment.

The practical result: the November 2020 will was struck down and the earlier 2018 will was restored, reinstating Richard's inheritance. Robert and Carly were reported to have been ordered to pay Richard's legal costs (in the region of £190,000) and to vacate the property.

What this means for you

The Dalton case is a difficult family story, but the lessons are clear, and they apply to anyone making or worried about a will:

• Capacity should be assessed properly, not assumed. Where a person is elderly or unwell, a will should follow the "golden rule": obtaining a contemporaneous medical opinion on capacity. It protects the will from challenge later.
• The person making the will should be seen alone. A genuine, private conversation (away from anyone who stands to benefit) is one of the strongest protections against undue influence.
• Sudden, dramatic changes deserve extra care. A will that disinherits a close family member, especially one made in unusual circumstances, will attract scrutiny if it is ever challenged.
• Who prepares your will matters. This case shows the consequences of inadequate safeguards. A properly run process creates a clear record that the will reflects your true, freely-made wishes.

At Make a Will, our process is designed around exactly these safeguards. That way your will is not just valid on paper. It can also stand up to challenge and carry out your genuine wishes.

This article is for general information and is not legal advice. If you are concerned about a will made under pressure, or about a loved one's capacity, please get in touch for advice on your specific circumstances.

Sources

• "No credibility" for will writer after court found evidence of undue influence — Today's Wills and Probate
• Wills Act 1837, section 9 — legislation.gov.uk
• Edwards v Edwards [2007] EWHC 1119 (Ch) — BAILII
• Schrader v Schrader [2013] EWHC 466 (Ch) — BAILII
• Find Case Law — The National Archives

Note: at the time of writing, the full written judgment in the Dalton case had not yet been published on BAILII or the National Archives' Find Case Law service. A neutral citation and direct link will be added once the judgment is reported.