What are the requirements for contesting a will on the grounds of a lack of ‘knowledge and approval’? Kelly Carr (nee Schofield) of Wright Hassall explains the complexities.

What is meant by ‘knowledge and approval’ when contesting the validity of a will?

Where a person’s will has been executed correctly, there is a presumption that the testator or testatrix has the required knowledge and approval of the terms of the will, as well as the required testamentary capacity.

However, there are certain circumstances where it must be proved that the testator had the required knowledge to understand the contents of their will and that they approved the content. For example, where they:

• are deaf and/or dumb
• cannot write or are paralysed
• are blind or illiterate
• directed another person to sign the will on their behalf

In any of the above circumstances, evidence will need to be provided to convince the court that the testator had knowledge of the will and approved its terms.

What happens if suspicious circumstances surround the preparation or execution of a will?

There is also a general exception to the presumption of a valid will if the circumstances surrounding the will being executed raise ‘suspicion’. In this case, it will be for the party who is arguing that the will is valid to produce evidence to counter the suspicion and/or convince the court that the testator had knowledge of the terms of their will and approved the content.

The approach of the courts in these cases, as established in the Court of Appeal case of Gill v Woodall [2010], is for the court to consider whether the testator understood a) what was in the will when he or she signed it, and b) what its effect would be. Here are some examples of potentially suspicious circumstances:

• The will is homemade 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 contains features which are uncharacteristic for the testator.
• The will contains a radical change in dispositions made without a rational explanation and/or generally the dispositions 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 of the beneficiary having acted dishonestly, suspiciously or against the interests of the testator and/or having played a central role in the making of the will.
• The was unusual behaviour of the testator at the time the will was made.
• There is evidence generally of the testator’s mind failing but they retained testamentary capacity.

Examples of lack of knowledge and approval in will case law

It is not often that cases of knowledge and approval of wills come before the courts, but it does happen. In Vaughan and Others v Vaughan [2005], for example, instructions for the will were given by the beneficiary and the testator took no advice in relation to the will. It was suggested that a medical opinion be obtained but this advice was ignored by the beneficiary. The testator did not read over the will at the time it was executed and accordingly the judge found that the testator did not have the necessary knowledge of their will and did not approve the contents. This is an example of a case where the judge found that the facts led themselves to being “bristled with suspicious circumstances”.

In Gill v Woodall [2010], the testatrix had executed her professional drawn will at her solicitor’s office, after it has been read over to her. However, she suffered from extreme agoraphobia and panic disorder, which deprived her of her ability to comprehend the will that she was executing. The court considered that the will was not valid on the basis of lack of knowledge and approval.

In Gupta v Gupta [2018], a widow made a will in 1998 (when her husband was still alive) leaving her residence to one of her three children and for her residuary estate to be equally shared between all three children. One of her two children who did not inherit her residence challenged the will on the basis that she lacked knowledge and approval of the content, citing four background matters to excite the suspicion and vigilance of the court:

1. The dominance of the testatrix’ husband.
2. The testatrix’ limited understanding and inability to comprehend written and spoken English.
3. The physical and mental conditions which the testatrix suffered from.
4. The absence of any good reason as to why the testatrix would want to create such disparity in the benefits received by her three children.

After consideration of all the evidence, the judge concluded in rejecting the challenge to the will on the following basis:

1. Whilst there was evidence supporting the view that the testarix’ husband was the head of a traditional, male-centred family, the relationship between the couple was a close and loving one. Given their close relationship, the judge considered that it would be surprising if the testarix’ husband had not discussed with the testatrix the contents of their mirror wills before execution.
2. There was a conflict in relation to the testatrix’ language skills. However, ultimately, it was concluded that the testatrix naturally conversed with some people in Hindi, her first language, and others in English, who perhaps did not speak Hindi. There was further evidence from her carers indicating that she had at least a modest understanding of the English language.
3. There was no substantial evidence that the testatrix’ mental and physical health impacted her ability to understand the contents of her will. There were no real signs of dementia at the time when she made her will, though she did develop signs of dementia later in life.
4. The reasons why the testatrix created a disparity in benefits between her children will remain speculation and the judge did not consider that there was anything on this point.

It is important to make thorough investigations as to the evidence for any claim challenging the validity of a will on the basis of a lack of knowledge and approval, as these cases can be difficult to prove given that the best evidence, ie that of the deceased, will not be available.

About the author

Kelly Carr (nee Schofield) is a Solicitor in the Contentious Probate Department at Wright Hassall LLP.

See also

Disputing whether a will has been validly executed

Everything you need to know about fixing mistakes in wills

Everything you need to know about testamentary capacity

Find out more

Wills Act 1837 (Legislation)

Making a will (Gov.uk)

Image: Getty Images

Publication date: 19 December 2019