Knowledge and approval - When is a will suspicious?

In recent months the court has handed down judgment in several claims in which a will has been challenged on the grounds of want of knowledge and approval.  

A testator must know and approve of the contents of their will in order for it to be valid. If a will, on its face, has been duly executed and there is proof of testamentary capacity, then knowledge and approval will normally be presumed. However, if the circumstances surrounding the making of a will appear to be suspicious, parties may consider bringing a claim for want of knowledge and approval.   

In these types of claim, the court will look at the circumstances surrounding the preparation and execution of the will and where those circumstances appear to the court to be suspicious, the burden of proving that the testator did understand and approve his will then falls to the person wishing to rely on it. The court will be “vigilant and jealous” in examining the evidence in support of the will (Fuller v Sturm (2002)).

So what is the likely to be considered suspicious? Each case is decided on its own facts, but examples might include:

• The will is homemade – for example the will has been made without any professional assistance, or in secret
• The will is made with the assistance of the main beneficiary – for example the main beneficiary has assisted with writing or typing the will, or has given instructions on behalf of the testator to a professional about the terms of the will
• The will contains spelling mistakes or mistakes about the testator’s assets – for example mistakes over the spelling of key individuals’ names, or where details about assets are incorrect or outdated
• There are concerns about the independence of the witnesses – for example they are related to or have some kind of link or relationship to the main beneficiary, or they cannot provide a proper account of what allegedly happened when they witnessed the will being signed.
• The terms of the will are radically different from the terms of previous wills made by the testator, without explanation – for example where a testator previously included several beneficiaries but excludes them in favour of one individual in particular, or varies their shares so that one beneficiary receives substantially more than the others
• The terms of the will do not match with what the testator had said to others about their estate – for example where the testator has said they want to leave their estate equally to all of their children, but the will leaves all/ most of the estate to just one
• The beneficiary of the will did not have a close relationship to the testator – for example they had not known the testator for very long, or where they had historically had a difficult relationship
• There is evidence of the beneficiary having concealed their involvement in the making of the will – for example where they have initially denied any involvement but change their position after the testator’s death
• There is evidence of the testator having issues around their mental capacity or ability to understand and manage their affairs – for example they are suffering from a mental condition such as dementia or have other vulnerabilities
• The circumstances in which the will was discovered or produced are strange – for example the will has been ‘found’ by the beneficiary after the testator’s death

The above features are not an exhaustive list – the court will look at the unique facts and circumstances of the case it is considering, but if some of the features above are present the court is likely to want to see evidence capable of dispelling the suspicion that the testator did not know and approve of the will’s contents. The court will look at the inherent probabilities and all of the relevant information will be scrutinised.

If you have concerns about the validity of a will and would like to discuss matters, please contact a member of our team.