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The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
Terrence Donovan
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 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.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Terrence Donovan
Louise Hodges
Louise Hodges
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