An update on Benjamin orders

Court of Protection applications for statutory wills, lifetime gifts, and the appointment and removal of attorneys and deputies are likely to involve consideration of P’s dispositive and testamentary wishes, family relationships and dynamics, capacity, and susceptibility to influence.

Practitioners advising on disputes concerning the beneficial ownership of land will frequently encounter a familiar difficulty. There may be situations where clients will assert that there was a clear family agreement that they would have an interest in one or more properties. However, they are not on the legal title, there is no trust deed or will in their favour, and critically, at least some of them cannot demonstrate any detrimental reliance on the agreement that was made. How, in these situations, can a trust be established?

Difficulties can arise in distinguishing between trust capital and income where the asset settled is itself a right to receive a stream of payments. Recently, in Wensley Stock and Others v Neal [2026] EWHC 1823 (Ch), Richards J held that royalties that were income for income tax purposes were nevertheless capital for trust law purposes.

Courts do not look fondly on those who attempt to frustrate legitimate claims by dissipating assets. The principles are illustrated by Teixeira v Moaven and Others [2026] EWHC 1215 (Ch). The defendant, like others finding their routes to success narrowing, was ingenious in his attempts to avoid the court’s anti-avoidance jurisdiction.

The recent decision in MacDougall v Thomas and Others (Re MacDougall) [2026] EWHC 1142 (Ch) will not be read quickly. Nicola Rushton KC, sitting as a Deputy High Court Judge, took 143 pages and over 500 paragraphs to dispose of nine transactions or groups of transactions across some 15 years, traversing testamentary capacity, knowledge and approval, testamentary and lifetime undue influence, proprietary estoppel, the duties of attorneys and ademption. Yet a dominant theme emerges: where the law of wills and general equity principles governing lifetime gifts collide, the two bodies of law must be kept distinct, so that a relationship raising presumed undue influence for a lifetime gift may fall short of the coercion required to invalidate a will.

Several recent decisions have considered the potential effect of partnership agreements on proprietary estoppel claims made in the context of family farming partnerships. This article seeks to summarise those decisions and briefly consider whether they establish any principles of general application.