Arabella Murphy is the founding director of Propitious (London) Ltd, a strategic consultancy focusing on risk planning, family governance and mediation.

“It is the perfect storm – based on their pre-pandemic relationship with him, his final Will feels all wrong. Very much offended and upset, each family ‘faction’ seeks legal advice, and close relationships become difficult. But, in many such cases, there is little evidence to show whether there was any undue influence or loss of capacity, or whether the end result simply reflected two years of isolation and reduced independence.” 

Whether or not one agreed (then or now) with lockdowns as a means of managing the spread of Covid-19, it is clear that, for the good that they did, there were also unexpected consequences. Media reports this week urged the government to extend the Covid-19 public enquiry to include those consequences, from mental health issues to NHS backlogs and educational delays.

Another intangible effect I am seeing as a mediator – and hearing about from solicitors – is a growing flood of disputes relating to Wills.

Let’s imagine an elderly uncle, and call him David. Pre-pandemic, he enjoyed socialising with family and friends and was independent, fit and active. Although he had no children of his own, he was close to his many nephews and nieces and their families, and his Will reflected that.

Come March 2020, David was – as we all were – confined to his own home. His niece Mary, who lived five minutes away, was the obvious choice to ‘bubble’ with him. She and her family visited him daily, did his shopping and looked after all his needs. Everyone said she was a saint, especially while managing her teenagers’ worries over remote schooling.

Sadly, David died in early 2022. It then became apparent that he had made a new Will which heavily favoured Mary, leaving little to the rest of the family. This was a surprise to everyone and – although the relationship was never about money – the family felt strongly that this did not reflect his true feelings.

But what exactly lay behind his new Will?

Had David’s feelings towards his family members changed? Perhaps David, as an older person who was confused by the rules meaning he could not see family members, thought they loved him less than Mary, whose devotion was in evidence daily. Or did nothing change – he remained as fond as ever of all his family, but wanted to recognise Mary’s particular kindness?

To begin with, although David could not work computers, there were lots of video calls with other family members, but those reduced over time. Was that Zoom fatigue, or was David being subtly influenced by Mary or having his access to screens controlled?

When visits were allowed, everyone saw him as often as they could, but were careful to shield him and (all having teenage children) were often unable to see him due to the risk of passing on infection. They noticed he was a little more frail, which could be normal for his age and being less active; but did that frailty make him more vulnerable to others? Was there a drip-drip of gentle hints, overt pressure, or nothing untoward at all?

Had David’s mental health deteriorated during the pandemic, as so many people’s did? Or maybe his mental capacity was declining, as is natural for many older people. Or possibly nothing was amiss and his choices were as robustly his own as they had ever been.

He (or sometimes Mary on his behalf) had spoken to a GP a few times for routine minor ailments, but he had not seen any doctors and no medical evidence was available of his capacity.

The solicitors who prepared his new Will were mindful of all the proper factors, and tried to take instructions over Zoom without anyone else present. David spoke clearly and seemed to have thought his wishes through independently. But, as David was no good with technology, one of Mary’s children set up an iPad for him and was available in the next room in case something went wrong.

The solicitors believed there was not anyone in the room with him, but of course they cannot know if Mary or someone else was an off-screen but persuasive (or controlling) presence. 

The Will, sent to him in the post, was executed (according to common pandemic practice) by David signing it with his long-time neighbours watching through the open window and then signing as witnesses. As David was less mobile by then, one of Mary’s children took the Will to the windowsill for signing, and then posted it back to the solicitors. Did that put David under unspoken pressure, or did it just help him to implement his true wishes?

For David’s family, like many others in this position, it is the perfect storm – their feelings towards him have not changed, and based on their pre-pandemic relationship with him, his final Will feels all wrong. Very much offended and upset, each family ‘faction’ seeks legal advice, and close relationships become difficult. 

Similar scenarios are being played out with Wills benefiting carers, or neighbours/friends where the family did not live close by. In many such cases, there is little evidence to show whether there was any undue influence or loss of capacity, or whether the end result simply reflected two years of isolation and daily support from one or two people.

Getting to trial – while possible in some cases – will be expensive and rely heavily on evidence as to people’s beliefs, based on a status quo that stopped abruptly in March 2020, and the changed environment that followed. Experts may be able to provide enough insights to assist the judge in deciding whose story is preferred. In some cases, even the most confident solicitors and Counsel may struggle to put the prospects of success at much above evens.

These are often cases which cry out for settlement through mediation, precisely because of the lack of clear evidence on either side. In many cases, mediation can help families to reach an outcome that feels acceptable without a judge’s win-or-lose pronouncement.

But, for the families involved in the current surge of cases, what will always be missing is the certainty of knowing what the testator actually intended, and whether the pandemic lockdowns changed that.