A Well-Drafted Will Is Only One Part of Effective Estate Planning
A recent High Court ruling involving a £1.7 million family dispute serves as a stark reminder that estate planning is not simply about drafting documents. It is equally about governance, oversight and ensuring that those entrusted with responsibility exercise it properly.
In MacDougall v Thomas, the High Court upheld a mother's final will but found that her daughter and son-in-law had improperly benefited from her assets while acting under a Lasting Power of Attorney.
The case concerned Jeanne MacDougall, whose family wealth derived from a substantial property portfolio built over many years. Following her husband's death, Mrs MacDougall's estate planning evolved through a series of wills, with a later will significantly favouring her daughter and son-in-law.
Her son challenged both the validity of the will and the conduct of those managing his mother's affairs.
While the court ultimately upheld the validity of the 2011 will, finding that Mrs MacDougall retained testamentary capacity and had not been unduly influenced when making it, the judge reached very different conclusions regarding the conduct of the attorneys.
The court found that more than £1 million had been spent from Mrs MacDougall's accounts for the benefit of the attorneys and their family, and that three properties worth approximately £1.6 million had been transferred following undue influence.
The judge described the misuse of funds as "extensive and wholesale", concluding that the attorneys had treated Mrs MacDougall's accounts and assets as if they were their own.
Importantly, the court rejected the argument that these transactions were simply advances against a future inheritance.
The judgment makes clear that attorneys owe strict fiduciary duties. Those duties exist regardless of family relationships and regardless of what an attorney believes the donor may have wanted.
As the judge observed: "ignorance of their duties is not a defence."
That statement should resonate with anyone acting under a Lasting Power of Attorney.
Too often, attorneys view an LPA as a practical authority to manage money. In reality, it is a position of trust carrying significant legal responsibilities.
This case highlights several recurring risks we encounter in practice:
Attorneys failing to understand their fiduciary duties;
Family members treating estate assets as future inheritances rather than protected assets;
Informal arrangements replacing proper record keeping and accountability;
Significant wealth being eroded through family disputes and litigation;
Estate plans lacking sufficient oversight during later life.
One of the most striking features of this case is that the will itself survived challenge. The real damage arose elsewhere.
The dispute centred not on the drafting of the will, but on what happened during the years leading up to death. The court was forced to unravel years of transactions, property transfers and financial decisions that should never have occurred.
At iTrust121, we often explain to clients that good estate planning is not simply about what happens on death.
It is equally about protecting people during life.
That means ensuring there are proper controls around attorneys, clear governance structures, accurate records and, where appropriate, independent oversight of significant decisions.
As Senior Counsel to iTrust121, one of the most common misconceptions I encounter is that appointing a trusted family member automatically removes risk. Unfortunately, some of the most serious disputes arise precisely because family relationships blur the distinction between personal entitlement and legal duty.
The MacDougall case is a powerful reminder that inheritance planning is not just about distributing assets. It is about protecting them throughout the journey. A well-drafted will remains important. But without appropriate safeguards around decision-making, asset management and attorney conduct, even the best planning can become vulnerable to challenge.
The purpose of modern estate planning is not simply to transfer wealth. It is to preserve family intentions, protect vulnerable individuals and ensure that assets remain available for the people they were intended to benefit.
James Berkeley
Senior Counsel
iTrust121