Upholding the Will: High Court Affirms Critical Weight of Solicitor’s Notes

Why Solicitor’s Notes Proved Crucial in Jenkins v Evans

The recent High Court decision in Jenkins & Anor v Evans [2025] EWHC 2438 (Ch) offers guidance for private client practitioners, providing a powerful reminder of the importance of meticulous note-taking throughout the will drafting and execution process.

The Heart of the Dispute: A Change of Named Executors

The case involved a challenge to a 2017 will executed by the Deceased, which maintained the equal division of the residuary estate between his two adult children, the son and the daughter. The 2017 will departed from an earlier 2006 will in two material respects. Firstly, the addition of pecuniary legacies to the value of £23,000 and the appointment of professional executors, the long-standing solicitor and a partner at his firm—in place of the two children, whose relationship had significantly deteriorated.

The Deceased’s daughter, the Defendant, challenged the validity of the 2017 will on the trifecta of classic probate grounds:

1. Lack of Testamentary Capacity
2. Lack of Knowledge and Approval
3. Undue Influence (alleged against both the brother and the professional solicitor).

The Judgment: Solicitor’s Evidence Proves Decisive

HHJ Russen KC dismissed all grounds of challenge, admitting the 2017 will to probate.

The judge found that the solicitor’s evidence, supported by detailed contemporaneous attendance notes recording the instructions and the Deceased’s reasoning, was entitled to “all the weight” envisaged by the Court of Appeal in the influential case of Hughes v Pritchard.

The solicitor’s notes clearly documented the Deceased’s concerns about the deteriorating relationship between his children and his informed decision to appoint professionals to ensure a smooth administration—a decision made over a three-month period of discussion.

The Legal Significance for Practitioners

The Jenkins case provides two critical takeaways for private client lawyers:

1. The Indispensable Value of Detailed Notes

The ruling reaffirms the principle that, in cases concerning capacity or challenges based on suspicion, the evidence of the solicitor who prepared the will is often a critical factor. Where that evidence is supported by detailed, high-quality attendance notes that address the Banks v Goodfellow test for capacity and confirm the testator’s free will, the Court will be heavily swayed.

The case strongly validates the practice of ensuring notes not only record the instructions but also detail the steps taken to assess capacity and investigate any potential red flags or suggestions of influence.

2. Undue Influence and Professional Fees Clarified

The judgment addressed the argument that a solicitor recommending their own appointment as an executor, with the prospect of charging fees, amounts to coercion.

The Defendant argued that the open-ended charging structure of the professional executors constituted undue influence. The judge rejected this assertion. This is welcomed clarification for non-contentious lawyers, confirming that providing a testator with advice to appoint professional executors, particularly when family relationships are strained, and charging on a recognised basis, does not in itself equate to undue influence. In this case, the Deceased had been fully sighted and informed as to the hourly rate and that fees were incurred on a time spent basis prior to execution of the will.

Conclusion: A Mandate for Meticulous Practice

Jenkins v Evans shows that the Court will rely on objective professional evidence to uphold a clear and properly documented will. Further, time invested in detailed contemporaneous note-taking is an effective form of insurance against a later contentious probate claim.

If you have a problem over a will or related concern, contact Sinels today for expert guidance on +44 (0)1534 620500 or click here to send us a message >