What is meant by ‘knowledge and approval’ when contesting the validity of a will?
For a will to be valid, the person making the Will (“the Testator”), in addition to having capacity, must have understood and approvedits contents.
What happens if suspicious circumstances surround the preparation or execution of a will?
If circumstances surrounding execution of the will are ‘suspicious, is down to those who believe the will to be valid to provide evidence countering the ‘suspicions’ and prove the testator did have knowledge of the terms of their will and approved its content.
The approach of the courts, in these cases, is to consider whether there was a clear understanding of:
- What was in the will when it was signed; and
- What its effect would be.
For example, if the testator suffers from severe mental illness, they may be unable to comprehend the will they are executing.
Perhaps a person did not seek professional advice and has left minimal or no provision for their children. Instead they give considerable benefit to others who are not reliant on them in any way. These ‘suspicious’ circumstances may lead to assumptions that there was neither the necessary knowledge of the will, nor approval of its contents.
Some potentially ‘suspicious’ circumstances include:
- The will is home-made, and no professional advice has been sought.
- The will contains spelling mistakes and/or uses language which would not have been used or understood by the testator.
- The will contains untrue statements and/or features which are uncharacteristic for the testator.
- The will contains a radical change to previous legacies/long-standing wishes made without a rational explanation and/or generally the legacies cannot be rationally explained.
- The relationship of the beneficiary to the testator was not close.
- The witnesses to the will were not sufficiently independent.
- There is evidence the beneficiary acted dishonestly, suspiciously or against the interests of the testator and/or having played a central role in the making of the will.
- The person who made the will is elderly and the will is in favour of people who are not very close to them or in a position of power over that person.
- The testator’s wishes were given in response to leading questions.
- There is evidence generally of the testator’s mind failing, but they retained some testamentary capacity.
Finally, there are a few other areas of mindful consideration.
Although where a will has been executed correctly, there is a general presumption that the testator has the required ‘knowledge and approval’ of the terms of the will, this may not be the case where that person:
- is deaf and/or unable to speak;
- cannot write or are paralysed;
- is blind or illiterate; or
- directed another person to sign the will on their behalf.
In these circumstances, the person relying on the validity of the will has to prove that the testator had knowledge of the will and approved its terms. This must be supported by evidence.
If you have any concerns regarding the validity of a Will or if you have concerns regarding the preparation and execution of a Will, please contact Christopher Seddon, who is the head of our Private Client Team, for guidance and an initial free telephone consultation.
Telephone: 01483 796008