Elliott v Bateson - Court strikes down life interest trust for want of knowledge and approval

The Facts

Mark Briant and his wife Rosemary had been together since the 1980s and married in 2011. Both had children from previous relationships. Mark was diagnosed with Parkinson's disease and, following a series of falls in January 2022, he was unable to return home. He went to live temporarily with his daughter Vanessa and her husband Ian (the Defendants) and never returned to live with Rosemary.

In May 2022, while living with the Defendants, Mark instructed a solicitor, arranged by Ian, to prepare a new will and new lasting powers of attorney. At this point, Mark was 92 years old, in a wheelchair and had difficulty speaking. Rosemary had recently been diagnosed with dementia.

Mark's initial instructions were to divide his estate (approximately £248,000, entirely in cash) equally between Rosemary and Vanessa's side of the family. Crucially, Mark's original intention was to leave Rosemary's 50% as an outright gift.

However, the solicitor, Mr Knight, suggested placing Rosemary's share in a life interest trust. This would grant Rosemary the right to reside in trust property and receive income from trust assets for her lifetime. The trust assets would then pass to other beneficiaries Rosemary's death. The will was executed on 20 May 2022. Mark died on 3 October 2022.

What did the court decide on knowledge and approval?

The will challenge was brought by Rosemary, with her son Jim acting as her Litigation Friend. His Honour Judge (HHJ) Michael Berkley, sitting as a Judge of the High Court, found that the circumstances aroused the court's suspicion as to whether Mark knew and approved the contents of the 2022 Will, specifically, the life interest trust provision.

The judge found that suspicion was aroused and was not dispelled, for several reasons:

• The solicitor's own understanding of the trust was confused. Mr Knight's explanation of how the trust would work changed between his attendance note, his witness statement, and his oral evidence. He variously suggested Rosemary would have "access to" the funds, which the trust did not permit.

• The trust was the solicitor's idea, not Mark's. The change to a life interest trust was introduced by Mr Knight. The attendance note merely recorded Mark as being "happy to go along with" the idea.

• No adequate explanation was given. There was no evidence that Mr Knight explained to Mark that Rosemary would receive income only, that she would have no entitlement to the capital, or that any access to capital would depend entirely on Vanessa's willingness to gift away her own inheritance. The follow-up letter was "woefully insufficient", and at the execution meeting, Mr Knight simply told Mark the will was "the same as we had spoken about previously," which it was not.

• The will was not read over to Mark. Although the will was relatively short, there was no evidence Mark had read it carefully, and the solicitor did not read it to him.

What remedy did the court grant?

The court concluded, on the balance of probabilities, that Mark did not know and approve of the life interest trust provisions.

The court struck out the words creating the life interest trust from Rosemary's share. The practical effect was to convert Rosemary's share into an absolute gift, which is what Mark had originally instructed.

Frequently Asked Questions

What is 'knowledge and approval' in the context of a will?

Knowledge and approval is the requirement that the testator knew and approved of the contents of the will at the time of execution. Where a will has been professionally prepared and duly executed, knowledge and approval will usually be inferred. However, where circumstances arouse the court's suspicion, such as the involvement of a beneficiary in preparation, or a departure from the testator's known wishes, the propounder must prove that the will represents the testator's true intentions.

Can a court strike out only part of a will?

Yes. Where the testator did not know and approve of only part of a will, the court may remove that part, provided the offending provisions are self-contained and their removal does not alter the sense of what remains.

What is the Golden Rule for will-making?

The Golden Rule recommends that where a testator is aged or seriously ill, the solicitor should arrange for a medical practitioner to satisfy themselves as to the testator's capacity to make a will. Although it is guidance rather than a rule of law, failure to follow it may expose a solicitor to criticism and make it harder to defend a will against challenge.

Case: Elliott v Bateson & Anor (Re Estate of Mark Briant) [2026] EWHC 2440 (Ch), handed down 23 September 2026.

This article is for general information purposes only and does not constitute legal advice. For advice on your specific circumstances, please contact Kate Ward in our Contentious Probate team.