There are five grounds on which the validity of a Will can be challenged. This article looks at the third ground known as ‘want of knowledge and approval’.
What does ‘want of knowledge and approval’ mean?
For a Will to be valid it must be shown that the Will maker – the testator – knew, understood and approved the contents of their Will.
As in the case of lack of capacity, a legal presumption saves the Probate Registries from grinding to a shuddering halt: if the Will has been duly executed and appears to be rational and fair, it is presumed the testator knew and approved its terms.
When does it arise?
Very frequently is the short answer. This type of claim tends to be pursued in conjunction with challenges on the grounds of a lack of capacity or undue influence.
Claims using ‘want of knowledge and approval’ usually arise in the following situations:
- Where there is a mistake in the preparation of the Will, meaning the testator’s instructions are not correctly ascribed in the Will and that error is not picked up;
- Where the testator suffers from a disability such as deafness, blindness or cannot read or write. In those cases, steps need to be taken to ensure that the contents of the Will are brought sufficiently to the testator’s attentions who then approves them;
- Where there is doubt as to the testator’s capacity to make a Will. If they do not have capacity to prepare a Will, they are not going to have sufficient capacity to understand and approve its contents; and
- Lastly, when the Will has been prepared in suspicious circumstances.
In the case of the first category, if the error is of a clerical nature, the Court does have jurisdiction to rectify the Will but that is outside the remit of this article. The second and third categories are logical. It is the fourth which is of most interest.
What are suspicious circumstances?
Take for example, a Polish woman living in the UK, with deteriorating eyesight and grasp of the English language. A tradesman she met some years before purchased a DIY Will and completed this on her behalf. Under its terms, he receives all her estate rather than her sister and niece who had benefited under her previous Will. Those are precisely the circumstances in which the Court stepped in, holding the Will to be invalid as the testator had not understood or approved the contents of the DIY Will.
Who has to prove what?
Assuming the Will is duly executed and appears rational and fair on its face, then it is likely to be admitted to probate. If, however, the person challenging the Will can show the circumstances are such as to ‘excite the Court’s suspicion’. If they do, then the burden reverts back to the party wishing to prove the Will to show that the suspicions are unfounded.
In a case not that dissimilar to the one mentioned above, a builder befriended the testator. The latter changed his Will two months before he died leaving his £500,000 estate to the builder. The beneficiaries under his previous Will challenged its validity on the grounds that the circumstances were suspicious. The Court disagreed. The builder was able to show that the testator knew exactly what he was doing, having shown it the builder and got him to read it, and having had it witnessed by his financial adviser.
As with challenges on grounds of a lack of capacity, these sorts of cases are highly fact sensitive and can be finely balanced. It is really important to identify at an early stage a specialist legal adviser who is able to discuss the merits of your case as well as the cost effectiveness of pursuing or defending a Will validity challenge.
We offer claim review meetings whereby we will take you through above ground as well as others claims and consider whether or not it is cost effective for you to launch a claim against the estate or to defend a claim brought by another.