Mental Capacity, Competing Wills and Family Trust Disputes: Why Estate Planning Records Matter
A signed will is important. But when a will, trust or other estate-planning decision is challenged, the evidence explaining how and why it was signed can be just as important.
The recent Court of Protection decision in Gopichand Parmanand Hinduja (Deceased) v Vinoo Srichand Hinduja and Another [2026] EWCOP 34 (T3) highlights how records created during a person’s lifetime may later become highly relevant to disputes involving mental capacity, competing wills, family trusts and probate.
The case arose from the long-running dispute within the Hinduja family and concerned documents produced during earlier Court of Protection proceedings involving the late Srichand Hinduja.
Those proceedings had included questions surrounding his mental capacity, his property and financial affairs Lasting Power of Attorney, and the management of his affairs.
Following his death, access was sought to some of that material for possible use in Jersey trust proceedings and an anticipated probate dispute involving competing wills made in 1992 and 2016.
Importantly, the court did not decide which will was valid, nor did it determine the underlying trust dispute.
Instead, it considered whether highly sensitive documents from the Court of Protection proceedings could be reviewed and potentially used in those separate legal proceedings.
What Did the Hinduja Court of Protection Case Decide?
One of the key issues was whether documents that had been protected during Court of Protection proceedings could become available after the death of the person concerned.
The court rejected the suggestion that those confidentiality protections simply disappeared upon death.
Instead, it approved a controlled, two-stage process.
First, permission could be given to review relevant non-privileged documents.
Once particular documents had been identified, a further application could then be made for permission to use those documents within the separate proceedings.
This distinction is important because information created during capacity or Court of Protection proceedings can remain highly sensitive even after death.
What Happens to Legal Professional Privilege After Death?
Privileged documents created another difficulty.
Legal professional privilege survives death for the benefit of the deceased person’s estate.
The Court of Protection could therefore no longer waive that privilege on Srichand Hinduja’s behalf.
The decision demonstrates an important point for estate planning and probate disputes: evidence created during a person's lifetime may later become central to questions about wills, trusts and mental capacity, while still remaining subject to strict confidentiality and privilege protections.
Why Mental Capacity Records Matter in Estate Planning
Mental capacity should never simply be treated as a box to tick on the day a will, trust, Lasting Power of Attorney or other estate-planning document is signed.
The principles governing decision-making for people who may lack capacity are set out in the Mental Capacity Act 2005.
Where a person is elderly, seriously ill or potentially vulnerable to influence, the professional file should create a clear record of the circumstances surrounding the decision.
That record should include:
the instructions given by the client;
the client's understanding of the proposed arrangements;
the reasons behind important decisions;
whether advice was provided independently;
any concerns about pressure or undue influence;
the evidence supporting the client's mental capacity; and
why the final documents reflected the client's wishes.
Those records may become crucial years later, when the person who originally gave the instructions is no longer available to explain their reasoning.
How Professional Records Can Help in a Will or Trust Dispute
Disputes involving wills and family trusts frequently arise after the person at the centre of the estate plan has died.
At that point, questions may be raised about matters such as:
whether the person had sufficient mental capacity;
whether they properly understood what they were signing;
why one beneficiary was treated differently from another;
whether somebody exercised pressure or undue influence; or
why an earlier will or estate-planning arrangement was replaced.
The signed document shows the final decision.
The professional records surrounding that decision may provide the evidence explaining why it was made and whether it genuinely reflected the client's wishes.
For probate disputes, the Civil Procedure Rules governing probate claims also recognise issues including testamentary capacity and undue influence as potential grounds of challenge.
The Wider Estate-Planning Lesson
Good estate planning is about more than producing legally effective documents.
It should also create a reliable record of the client's wishes, reasoning and understanding at the time those documents were prepared.
This is why effective estate planning should consider not only the documents themselves, but also the evidence, advice and decision-making process supporting them.
No professional file can guarantee that a disappointed relative will not bring a claim.
However, careful instructions, appropriate capacity evidence and a well-documented decision-making process can make an estate plan considerably more difficult to challenge.
The document records what was decided.
The professional file may ultimately prove why that decision should be respected.
Frequently Asked Questions
Can Court of Protection documents be used after someone dies?
Potentially, but they do not automatically become freely available following death. As the Hinduja decision demonstrates, permission may still be required to review and subsequently use relevant material in separate proceedings.
Does legal professional privilege end when a client dies?
No. Legal professional privilege can survive death for the benefit of the deceased person's estate.
Why is evidence of mental capacity important when making a will?
If a will is later challenged, contemporaneous evidence showing the client's understanding, instructions and decision-making process may help demonstrate that the will genuinely reflected their wishes.
Government guidance on making sure a will is legally valid also includes the requirement that the person making the will is of sound mind.
What records should estate-planning professionals keep?
The professional file should clearly document the client's instructions, understanding, reasoning, capacity evidence, independence of advice, any concerns around influence or pressure, and why the final arrangements reflected the client's wishes.
James Berkeley
Senior Counsel
iTrust121 Ltd