Every so often a court case comes along that shows exactly why we take such care over how a Will is made — not because the law is complicated, but because getting the basics right protects a family for good. Ginger v Mickleburgh, decided in the High Court this year, is one of those cases. It is worth understanding, whether you are making a Will for the first time or simply keeping an eye on how the law works.
What happened in Ginger v Mickleburgh
Michael Gwilliam died in February 2022, aged 79. He had been suffering from dementia for some years before his death. The dispute in court was about a Will he had signed back in December 2014 — a Will that cut down what his four daughters would inherit, and instead left a substantial share to his sister, her son, and his companion.
His daughters challenged the Will. They said their father had not had the mental capacity to make it. The court agreed with them. HHJ Leslie Blohm KC ruled the 2014 Will invalid and declared that Michael had died intestate — meaning the rules of intestacy, not the 2014 Will, decided who inherited. As a result, his four daughters inherited as his next of kin, which is what would have happened if he had never made a Will at all.
The legal test: Banks v Goodfellow
The test for whether someone has the mental capacity to make a valid Will goes back to a Victorian case, Banks v Goodfellow, decided in 1869. It is still the test the courts use today. Broadly, a person making a Will must understand what a Will does, understand the extent of what they own, understand who might normally expect to benefit, and — this is the part that mattered in Michael’s case — not be suffering from any “insane delusion” that affects how they leave their estate.
An insane delusion, in this legal sense, is a false belief that a person holds fixed in their mind, that no reasoning or evidence will shift, and that is caused by a disorder of the mind rather than simply being a mistaken opinion. The person challenging the Will has to show that such a delusion existed. Once they do, the burden moves to whoever is defending the Will to show that the delusion did not actually influence what was written in it.
Why the court set the Will aside
In Michael’s case, the court found that he had genuinely — but wrongly — come to believe that people were harassing him to force the sale of his farm, and that his own daughters were conspiring to have him sectioned so they could take his property. Medical evidence, including a joint expert report and his contemporaneous medical records, showed this belief was a product of organic brain disease rather than a reasonable, if mistaken, view of events.
Because that false belief was directly connected to the very decision to cut his daughters out of his Will, the judge held that Michael lacked testamentary capacity when he signed it. There was also an alternative argument that someone had deliberately poisoned Michael’s mind against his daughters with false statements — a legal concept called “fraudulent calumny” — but the judge decided the case on the capacity point alone.
Where the process fell short
One detail from the case is genuinely instructive for anyone advising on Wills, and for families thinking about how their own affairs should be handled. The paralegal who took Michael’s instructions for the 2014 Will had not obtained a medical opinion on his capacity — despite already knowing that he had recently been sectioned, and despite knowing that he intended to leave the bulk of his estate away from his own children. The judge described getting a doctor’s opinion in these circumstances as the “golden but tactless rule” — golden because it protects everyone, tactless only in the sense that it can feel awkward to ask. It is a rule worth remembering: when a Will significantly changes who benefits, or when there is any question mark over someone’s health, a proper written assessment of capacity is not an optional extra. It is the thing that makes the Will stand up years later, long after the person who made it has died and can no longer explain their own reasoning.
None of this means every single Will needs a doctor’s letter attached to it. Most people making a Will are in good health, and a straightforward, well-documented conversation is all that is required. The golden rule comes into play at the edges — when age, illness, or a hospital admission is already part of the picture, or when the Will being proposed looks unusual against what a family would normally expect. In those situations, a short medical assessment, taken at the time, is a small step that removes almost all room for a later challenge.
The court also noted that two of the people who stood to benefit from the Will were present when Michael gave his instructions. That is worth pausing on. It is not that a relative sitting in the room automatically makes a Will invalid — it does not. But it removes a layer of protection. Instructions taken privately, with the person alone, give everyone confidence later that the wishes recorded were truly the testator’s own, uninfluenced by who else was listening.
Why “he seemed fine that day” is not enough
A theme that runs through capacity cases like this one is how little weight the court gives to lay impressions formed on the day — “he seemed sharp”, “she knew exactly what she wanted”, “he was telling jokes and asking after the grandchildren”. None of that is evidence of legal capacity in the way a medical assessment is. Dementia and other conditions that affect capacity do not remove a person’s charm, their memory of old stories, or their ability to hold a normal conversation. They can, however, sit alongside fixed false beliefs that quietly shape a decision as significant as who inherits a farm or a family home. That is precisely why a proper process does not rely on a solicitor’s or adviser’s gut feeling. It relies on asking the right questions, keeping a clear written record of the conversation, and — where there is any doubt at all — bringing in an independent medical opinion before the Will is signed, not after someone has died and it is too late to ask.
What it means when a Will fails
One point in this case surprises people every time: when a Will is set aside, the law does not fall back on an earlier Will, or on what everyone assumes the person “really” wanted. It falls back on the rules of intestacy — the same fixed rules that apply to anyone who never made a Will. Those rules set out, in a strict order, who inherits: usually a spouse first, then children, then wider family, following a set formula rather than anyone’s personal wishes. In Michael’s case, that meant his estate passed entirely to his four daughters as his next of kin, because the 2014 Will was struck out altogether. There was no halfway house and no room for the court to simply write a fairer Will in its place, and no way to bring back whatever an earlier Will might have said, because none of that matters once a Will is found invalid.
This is worth sitting with for a moment, because it cuts both ways. In this particular case, intestacy happened to produce a result most people would call fair — the daughters inherited. But that will not always be true. Someone’s unmarried partner of thirty years has no automatic right to anything under intestacy. Stepchildren are not included at all unless they were formally adopted. A business partner, a favourite charity, a long-serving carer — none of them get a look-in. The only way to be certain your estate goes where you actually want it to go is to have a valid, properly made Will in place, and to keep it up to date as life changes.
This is a useful thing to understand, and it is not a reason for anyone with a properly made Will to worry. Quite the opposite — it is exactly why the process we follow matters so much: a clear conversation with the person making the Will, on their own, a written record of that conversation, and a proper capacity assessment whenever there is any reason for one, whether that is age, illness, or a Will that looks unusual on its face. Done properly, a Will is about as solid a legal document as exists. Cases like this one only become a problem when that process is skipped.
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