Capacity, Control and the Estate: What Three 2026 Judgments Tell Families About Wills, Deputies and Provision

When an older relative loses capacity, families tend to meet the law in three places at once. There is the Court of Protection, which decides who may act for a living person who cannot act for themselves. There is the probate court, which decides after death whether a will stands. And there is the Inheritance (Provision for Family and Dependants) Act 1975, under which a will that is perfectly valid can still be rewritten because it fails those the deceased was bound to provide for. Three judgments this year, one from each of those rooms, repay reading together, because the mistakes families make usually come from assuming that what is decided in one room settles matters in the others.

Can the Court of Protection decide whether a will is valid?

No, and Croll v The Estate of Margaret Mary Thorpe [2026] EWHC 2232 (Ch) shows why the point matters. Mr Thorpe suffered a stroke in 2017. In the summer of 2021, having moved in with one of his three children, he executed lasting powers of attorney in her favour and a new will leaving her everything, in place of a 2001 will that favoured his wife and then the children equally. The Office of the Public Guardian applied to set aside the powers of attorney. After a three day hearing in November 2023, the Court of Protection judge found that Mr Thorpe had lacked capacity to grant them, rejected the daughter's evidence in forthright terms, and recorded in his order a declaration that the 2021 will was invalid.

Mr Thorpe died in February 2024 and his widow in May 2025. The daughter then sought to prove the 2021 will. Her siblings, representing their mother's estate, applied to strike the claim out, arguing that the question of capacity had already been decided. Master Clark dismissed the application. The widow's estate had not been a party to the Court of Protection proceedings, and a judgment binds only parties and those who share their legal interest. The findings therefore created no issue estoppel and were not even admissible as evidence in the probate claim. Beyond that, the Court of Protection's power under section 15 of the Mental Capacity Act 2005 is to declare whether a person has or lacks capacity now, not whether they had it on some past date, and a will is a mere declaration of intention until the testator dies, revocable at any moment. Its validity cannot crystallise, still less be adjudicated, while the testator lives.

The lesson is uncomfortable for both sides of such disputes. A finding of incapacity in the Court of Protection, however carefully reached, does not dispose of a later will challenge; the evidence must be deployed again under the common law test for testamentary capacity, which asks a different question from the statutory test for decision making. Equally, the daughter should take little comfort. The Master observed that the appeal judge's praise for the Court of Protection's evaluation of the evidence was a strong indication of how the probate claim would end.

Who makes welfare decisions for an adult who cannot?

A person who has lost capacity cannot grant a lasting power of attorney, which is why the Court of Protection's role in appointing deputies matters so much to families of adults with lifelong disabilities. Deputies for property and affairs are routine. Deputies for personal welfare have been rare, because the Code of Practice and the earlier case law treated them as appropriate only in the most difficult cases.

In Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960, the Court of Appeal changed that landscape. HB is twenty two, with a severe learning disability, autism and epilepsy. His parents, already his property and affairs deputies, applied to be his welfare deputies in an application nobody opposed. The judge refused, reasoning that collaborative decision making had served HB well and that an appointment would be an unnecessary infringement of his autonomy. Sir Stephen Cobb, President of the Court of Protection, giving the lead judgment on 24 July 2026, held that the finding about collaboration was not supported by the evidence and that autonomy was an uncertain and inapposite tool for the question. The passage of the Code suggesting that welfare deputies should be appointed only in the most difficult cases was described as plainly wrong.

The Court set out the features that may make an appointment appropriate: a special relationship between applicant and the person, typically a parent; the likelihood that the appointment will give better effect to the person's wishes and feelings; an anticipated stream of future decisions rather than a single one; the transition from children's to adult services; public bodies failing, or threatening to fail, to consult the family as the Act requires; and the need for prompt decisions as circumstances change. Time limited orders for young adults in transition were expressly endorsed. The application was sent back for the scope of the order to be settled.

What if the will is valid but fails the surviving spouse?

The third judgment concerns an estate where nobody doubted the will. Thirsk v Thirsk [2026] EWHC 1501 (Ch) involved a farming estate of some £26 million. The deceased had lived with the claimant from about 2003, married her in March 2021, made his will in February 2022 and died in April 2022. The will gave her a £5 million legacy and the right to live in the farmhouse for life, forfeited if she remarried or cohabited, with everything else to his son from an earlier relationship, who farms the land. She sought about £16 million.

Cusworth J held that the will did not make reasonable provision; a home held only for life, and lost on cohabitation, was described as entirely unreasonable. But the measure of the shortfall was modest. Applying the divorce cross check in section 3(2) of the 1975 Act through the lens of Standish v Standish [2025] UKSC 26, the judge treated the £9 million held before the relationship began as outside any sharing claim and found that between half and two thirds of the later acquired wealth had become matrimonial. On needs, he set a budget of £275,000 a year, capitalised over twenty years rather than for life, and added £1.4 million for housing. The son's open offer, worth about £7.96 million including the farmhouse and its land outright, already exceeded that, and the court made an order in its terms. Nineteen years together counted; a nineteen year marriage would not have produced a different sharing analysis, because the farmland had always been intended for the son.

What connects the three

Each judgment draws a boundary around a jurisdiction. The Court of Protection governs the living and cannot pronounce on wills. The probate court decides validity after death, on its own evidence. The 1975 Act rewrites valid wills, but only to the extent of the need shown, and increasingly by reference to how the money was made. Families who understand which court decides what are far better placed, whether they are seeking to protect a vulnerable parent, to act for an adult child, or to make a will that will withstand both a challenge and a claim.

The law is stated as at 27 October 2026.

This article is general information and does not constitute legal advice.

About the author: Dr Aamir Nawaz, LLB (Hons), LLM, PhD, Solicitor, Barrister (np) and Notary Public.