Acting to stop harm: the FCA and Appointed Representatives
The High Court has handed the latest blow to individuals looking to challenge a will on the ground of ‘want of knowledge and approval’ in the case of Tony Pittas v Katerina Christou and Eleni Loizou (2014).
An allegation that a testator did not know and approve of the contents of an apparent will essentially means that that he did not understand what he was doing and its effect, such that the will does not represent his testamentary intentions.
When such an allegation is made, the burden of proof falls on the person relying or benefitting on the disputed will. Where the circumstances surrounding the execution of a will excite the suspicion of the court, the court will declare the will is invalid unless the suspicion is removed by satisfactory evidence of how the will came to created and/or how it was executed.
In recent years, challenges to the validity of wills based on ‘want of knowledge and approval’ have been on the rise and are often made alongside allegations that that the deceased lacked testamentary capacity and/or was being unduly influenced (and in some cases, including this one, fraud). Due to the difficulties in proving that a deceased lacked testamentary capacity (particularly where a solicitor prepared the will and asked the right questions) and the evidential burden of proving serious allegations like undue influence and fraud, ‘want of knowledge and approval’ claims are seen by some as an easier route for those challenging the validity of wills.
Pittas v Christou and Loizou
Pittas was a solicitor who had acted for the deceased in preparing a will purported to have been made in 2008 (“the 2008 Will”). Under the 2008 Will, Christou (the deceased’s adopted daughter from his second marriage) and Loizou (the deceased’s daughter from his first marriage) would share the estate equally. In the event of the 2008 Will being invalid, as alleged by Christou, the entire estate would pass to her under an undisputed Will made in 1998 (“the 1998 Will”).
Christou alleged that the 2008 Will was invalid on two grounds. Firstly, she alleged that Pittas, Loizou’s husband and the two purported witnesses to the 2008 Will had conspired to forge some or all of the signatures on it. Secondly, she alleged that the deceased did not know and approve the contents of the 2008 Will (‘want of knowledge and approval’).
It was common ground between the parties that the deceased had testamentary capacity when the 2008 Will was made. Pittas gave evidence that he drafted the 2008 Will for the deceased on his instructions and sent it to him with an explanation of how to execute it, and that some months later Loizou’s husband handed it back to him. The witnesses were the deceased’s neighbours and good friends. Their evidence was that when they were visiting the deceased he asked them to witness him sign the 2008 Will, which they did, having read it aloud. Loizou’s husband gave evidence that the deceased asked him to hand the 2008 Will to Pittas and that he personally dated the document with the deceased’s permission.
Christou’s evidence (and that of her friends and family) was that the deceased had fallen out with Loizou and had repeatedly told them that he was leaving everything to Christou. She alleged that the circumstances surrounding the making and execution of the 2008 Will were suspicious.
Decision and Comment
Judge John Martin QC held that the evidence of Pittas, Loizou’s husband and the two witnesses to the 2008 Will was credible and therefore that the 2008 Will was created and executed in the way they had alleged. The court also found that the witnesses to the signing the 2008 Will gave clear evidence that the deceased knew what he was signing and, given the simplicity of the provisions, he would have understood enough of it when it was read out to understand that it reflected his instructions to Pittas. There were therefore no circumstances surrounding the making and execution of the 2008 Will to excite the suspicion of the court and it was held that it genuinely reflected the testamentary intentions of the deceased.
It is not surprising that the court reached this decision. Many of the elements that one might look for when seeking to challenge a will on the ground of want of knowledge and approval were missing in this case. The 2008 Will was not a homemade will, and whilst it represented a change from the deceased’s earlier will, it was far from irrational given that he decided to split his estate equally between his daughter and his adopted daughter. The execution of the 2008 Will was witnessed by two friends who, critically, were independent and had no apparent motive to involve themselves in anything untoward or do anything other than simply tell the truth. Further, their explanations as to how the 2008 Will came to be executed were, on the face of it, credible. The 2008 Will itself was relatively straightforward and therefore it is more likely that the deceased would have been able to understand the effect of it.
There will often be aspects surrounding the creation and execution of wills which are less than satisfactory. However, in order to succeed in a want of knowledge and approval claim, the circumstances need to actually be suspicious. If a testator has testamentary capacity, engages a solicitor to prepare his will and involves independent witnesses who can give a credible explanation about the execution of it, one would generally expect the court to be satisfied that the will reflects the testator’s intentions.
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