A long-running High Court inheritance dispute has ended this week with a ruling in favour of Gary MacDougall, the disinherited son of the late property developer's widow Jeanne MacDougall. Judge Nicola Rushton KC found that Mr MacDougall's sister and brother-in-law had used the elderly woman's bank accounts as if they were their own and unduly influenced her into transferring three properties out of the estate. The judgment, reported in coverage of the case this week, requires the return of around £2.6 million in misappropriated funds and challenged property transfers. The case is a textbook illustration of how undue influence claims work in England and Wales. This guide sets out the grounds for challenging a will and the protections that exist when an attorney is acting under a Lasting Power of Attorney.
TL;DR
A will in England and Wales can be challenged on four main grounds: lack of testamentary capacity, lack of valid execution, lack of knowledge and approval, and undue influence. A separate route under the Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to claim reasonable financial provision even from a validly executed will. Lifetime gifts and transfers made while the deceased was vulnerable can be challenged separately. An attorney under a Lasting Power of Attorney must act in the donor's best interests; gifts above small permitted limits require a court order. The MacDougall case is a recent example of the High Court finding all of these tests had been breached.
Last reviewed: 23 May 2026
The four grounds for challenging a will
Under the law of England and Wales, a will can be set aside by the court on any of four established grounds. The first is lack of testamentary capacity, meaning the person making the will did not understand at the time of signing what they were doing, the extent of their estate, or who might reasonably expect to benefit. The leading test comes from Banks v Goodfellow (1870) and remains the standard applied by the courts.
The second ground is lack of valid execution under the Wills Act 1837, which requires the will to be in writing, signed by the testator, and witnessed by two independent witnesses present at the same time. The third ground is lack of knowledge and approval, meaning the testator did not properly understand what was in the document they signed. The fourth ground is undue influence, where the testator's free will has been overborne by another person.
What undue influence has to prove
Undue influence is the hardest of the four grounds to establish because the standard of proof is high and direct evidence is often unavailable. The claimant must prove that the influence amounted to coercion, not merely persuasion or argument, and that the will would not have been made in those terms without it. Suspicious circumstances alone are not enough; the court looks for clear inferences of coercion drawn from the surrounding facts.
The MacDougall judgment is unusual in that the court found undue influence proved on the property transfers themselves, not just on the will, and found the conduct of the attorneys to be objectively unreasonable. The combination of medical evidence on the deceased's capacity, the pattern of spending from her accounts, and the structure of the property transfers gave the court enough to draw the inference.
The Inheritance Act 1975 alternative route
Even where a will is validly executed and free of undue influence, certain people can apply to the court for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The categories of eligible applicants include the spouse or civil partner of the deceased, a former spouse who has not remarried, a child of the deceased, a person treated as a child of the family, and someone who was being financially maintained by the deceased immediately before death.
Cohabitants who were living with the deceased as if married for at least two years before death also qualify. The standard for spouses is what would be reasonable in the circumstances, which is broader than the maintenance standard applied to most other applicants. Claims must be brought within six months of the grant of probate, with limited extensions in exceptional circumstances.
Lasting Powers of Attorney and the limits on attorneys
A Lasting Power of Attorney (LPA) for property and financial affairs allows an attorney to make decisions on behalf of a person who lacks or may lack mental capacity. The Mental Capacity Act 2005 requires the attorney to act in the donor's best interests at all times, and the Office of the Public Guardian provides supervision.
An attorney's authority to make gifts is tightly limited. The attorney can give gifts on customary occasions such as birthdays and weddings, and to charities the donor would normally have supported, provided the gifts are reasonable in light of the size of the estate. Anything beyond that, including substantial gifts to family members or transfers of property, requires an application to the Court of Protection. An attorney who exceeds these limits can be removed and ordered to make restitution to the estate.
What this means for your own estate planning
Inheritance disputes in England and Wales have risen sharply over the past decade. Higher property values, longer life expectancy and the prevalence of blended families have all added to the pressure on estates. Steps that reduce the risk of a successful challenge include keeping contemporaneous medical evidence of capacity where the testator is elderly or unwell, using a solicitor to draft and witness the will, attaching a written statement explaining any unequal treatment of children, and reviewing the will after major life events such as marriage, divorce or the birth of a child.
For LPAs, choosing co-attorneys who must act jointly rather than jointly and severally adds a check on misuse. Regular statements of account, kept by the attorney and shared with family members or the donor's solicitor, are good practice and helpful evidence if any later dispute arises.
Disclaimer
This article is general information on wills and inheritance disputes in England and Wales. Scotland and Northern Ireland have separate rules. Nothing here is legal advice. Anyone considering a will challenge, an Inheritance Act claim or an LPA dispute should consult a solicitor authorised by the Solicitors Regulation Authority. For broader guidance, see Kaeltripton's explore index.
Frequently asked questions
How long do I have to challenge a will?
For an Inheritance Act 1975 claim, the deadline is six months from the grant of probate, although the court has limited discretion to allow late claims. For claims to set aside a will on capacity or undue influence grounds, the standard limitation periods under the Limitation Act 1980 apply, although delay reduces the prospects of success.
Who pays the legal costs of a will challenge?
Costs are at the court's discretion. The general rule is that the losing party pays the winner's costs, but in probate cases the court often orders costs to come from the estate where the dispute arose from the testator's own conduct. This is not guaranteed.
What is a caveat?
A caveat is a notice lodged with the Probate Registry that prevents a grant of probate being issued. It is used to pause administration of the estate while a dispute is investigated. A caveat lasts six months and can be renewed.
Can a will be challenged on the basis of fairness alone?
No. English law respects testamentary freedom, meaning a person can broadly leave their estate to whomever they choose. Unfairness is not a ground to set aside a will. The Inheritance Act 1975 provides a limited route for reasonable financial provision in defined categories.
What is the role of the Court of Protection?
The Court of Protection makes decisions for people who lack mental capacity. It supervises attorneys appointed under Lasting Powers of Attorney and can authorise gifts and transactions that fall outside the attorney's own authority.
Are lifetime gifts safe from challenge?
Lifetime gifts can be challenged on the same grounds as a will, including capacity, undue influence and breach of fiduciary duty by an attorney. The MacDougall case involved challenges to lifetime property transfers as well as the will itself.
What happens if there is no will?
The estate is distributed under the intestacy rules in the Administration of Estates Act 1925 and subsequent amendments. The rules prioritise the surviving spouse or civil partner and children. Unmarried partners receive nothing under intestacy and must apply under the Inheritance Act 1975 if they wish to claim.
How we verified this
This article draws on the Wills Act 1837, the Inheritance (Provision for Family and Dependants) Act 1975, the Mental Capacity Act 2005, the Limitation Act 1980, the Administration of Estates Act 1925, GOV.UK guidance on probate and Lasting Powers of Attorney, and Office of the Public Guardian guidance on attorneys' duties. The Banks v Goodfellow test and subsequent case law on capacity, knowledge and approval, and undue influence are the standard legal references used by the courts.
