Can a Will Remain Valid Despite Attorney Misuse? Lessons from MacDougall v Thomas on LPAs, Lifetime Gifts and Probate Disputes

Family inheritance disputes are often about more than money. They can involve grief, trust, care, long-standing expectations and difficult questions about vulnerability.

The High Court’s decision in Gary Alexander MacDougall v Lloyd Philip Thomas and others [2026] EWHC 1142 (Ch) is a clear example.

The case provides important guidance on several issues that frequently arise in contentious probate claims, including challenges to Wills, the misuse of a Lasting Power of Attorney, undue influence, lifetime gifts and the recovery of assets for an estate.

For families, attorneys and beneficiaries, this judgment serves as an important reminder. A valid Will does not give someone permission to treat another person’s money as their own.

Key Takeaways

• A Will can be valid even where attorneys have misused a person's assets during their lifetime.

• Attorneys acting under a Lasting Power of Attorney must always act in the donor's best interests.

• Lifetime gifts and property transfers can be challenged separately from the validity of a Will.

• Beneficiaries who have improperly benefited from an attorney's actions may be required to repay money or restore assets to an estate.

• The case highlights the importance of proper estate planning and careful record keeping by attorneys.

The Case

The case concerned the estate of Jeanne MacDougall, who died in April 2020.

Her son, Gary, brought a claim against his sister, Sandra, and her husband, Philip. The family wealth came largely from property interests built up by Jeanne’s late husband, Alec.

Jeanne made a Will in 2008. Under that Will, the arrangements were said to give broadly equal benefit to Gary and his family on one side, and Sandra and Philip on the other.

In 2011, Jeanne made a new Will. The new Will was far more favourable to Sandra and Philip. It left them the main properties and Sandra was also due to receive most of Jeanne’s cash. Gary and Sandra were to share the residue, i.e. what is left after specific gifts, debts, costs and expenses have been dealt with.

However, because the principal assets had largely been left to Sandra and Philip, Gary argued that the residue could ultimately have little or no value.

He challenged the 2011 Will and also challenged transactions made during Jeanne’s lifetime.

His case included allegations that Jeanne lacked mental capacity when she made the 2011 Will, that she did not properly understand or approve it, and that she had been unduly influenced. He also claimed that Sandra and Philip had misused Jeanne’s money while acting under a lasting power of attorney.

Was the 2011 Will Valid and Were the Attorneys Acting Properly?

The court upheld Jeanne’s 2011 Will.

Judge Nicola Rushton KC rejected the challenge to the Will. The court found that Jeanne had testamentary capacity. This means she had the legal ability to make a Will. The court also found that she knew and approved the contents of the 2011 Will.

The judge accepted that there were reasons why Jeanne may have wanted to reward Sandra and Philip. They had provided her with care and support. The court did not find that the 2011 Will itself was caused by undue influence.

However, that was not the end of the matter.

The court also found that Sandra and Philip had seriously misused Jeanne’s assets during her lifetime. They had used her bank accounts and assets for their own benefit and for the benefit of their family. The court also found that certain property transfers had resulted from undue influence.

The judgment illustrates an important distinction in contentious probate disputes. A challenge to the validity of a Will is separate from a claim relating to the misuse of assets during a person's lifetime. Even where a Will remains valid, the court may still order assets to be repaid to the estate if an attorney or family member has acted improperly.

The effect was significant. Although the 2011 Will remained valid, Sandra and Philip were ordered to restore value to the estate, including in relation to misused funds and properties transferred during Jeanne’s lifetime.

What Does MacDougall v Thomas Mean for Lasting Powers of Attorney and Estate Disputes?

This judgment matters because it separates two issues that families often confuse.

The first issue is whether a Will is valid. The second is whether someone has misused a person’s assets before death.

A Will can be valid even where there has been serious misconduct during the person’s lifetime. Equally, a person named in a Will may still have to repay money or return property if they have acted wrongly in misusing assets before death.

The case also offers and important reminder for attorneys under a Lasting Power of Attorney. An attorney must act in the donor’s best interests. They must keep the donor’s money separate from their own. They must not treat the donor’s assets as an early inheritance.

That remains true even if the attorney believes they Will inherit later. It also remains true if the attorney thinks the donor would have approved of the spending.

The court made clear that ignorance of attorney duties is not a defence. Attorneys should understand their responsibilities and take advice where needed.

What Is Financial Abuse Under a Lasting Power of Attorney?

One of the most significant aspects of the judgment is its consideration of financial abuse under a Lasting Power of Attorney.

Financial abuse can occur where an attorney uses the donor's money, property or assets for their own benefit without proper authority. Common examples include transferring property, making excessive gifts, withdrawing cash without explanation or using the donor's funds to pay personal expenses.

Family members often become concerned when they notice unexplained transactions, substantial gifts or a sudden change in the donor's financial arrangements. In appropriate cases, the court may require the attorney to account for their actions and restore assets to the estate.

Practical Lessons For Estate Planning, Attorneys, and Beneficiaries

The judgment provides us with practical lessons and serves as an important reminder.

Firstly for individuals considering estate planning, make sure your Will is clear, up to date and properly recorded. If you plan to treat children or family members differently, take specialist advice. A clear file note can help explain your reasons and reduce the risk of a later dispute.

Secondly, be careful with lifetime gifts. Giving away property or large sums during your lifetime can have major legal and tax consequences. It can also create suspicion if the gift benefits someone who is closely involved in your care or finances.

Thirdly, choose attorneys carefully. An attorney has access to sensitive financial information and may have control over significant assets. Trust is essential, but so is judgement.

Fourthly, attorneys should remember to keep detailed records. This includes bank statements, receipts, notes of major decisions and evidence of why payments were made. If a decision is challenged later, good records can make a real difference.

Finally, do not assume that family arrangements are informal. When an attorney manages another person’s money, strict duties apply. The money belongs to the donor, not the attorney and not the future beneficiaries.

The decision in MacDougall v Thomas demonstrates that a valid Will does not prevent the court from scrutinising lifetime transactions or investigating the conduct of attorneys.

Where concerns exist about the misuse of a Lasting Power of Attorney, suspicious lifetime gifts, financial abuse or undue influence, early legal advice can be crucial in protecting an estate and recovering assets where appropriate.

How Forbes Solicitors Can Help

Our specialist Contentious Probate team advises clients on a wide range of inheritance disputes, including claims under the Inheritance Act 1975, adult child claims, and cases involving disabled dependants or vulnerable beneficiaries.

If you believe you have been unfairly excluded from a Will, we can help you assess your options and the strength of any potential claim. For more information or to arrange a consultation call 0800 689 3607 to speak with a member of our team