Suspicious Wills: the rise of ‘want of knowledge and approval’ claims?

20 July 2012

A high profile case was heard at the High Court in London recently, in which two Wills prepared by an individual on behalf of his sisters were set aside on the grounds of want of knowledge and approval. We have also just settled a probate dispute where a Will was challenged on this basis. These claims arise when the circumstances surrounding the making of a Will appear to be suspicious. A testator must have knowledge and approval of the contents of a Will in order for it to be valid.

The court will scrutinise all of the ‘suspicious’ circumstances in connection with a disputed will when dealing with want of knowledge and approval allegations. Here are 10 things to look out for, which could be deemed as ‘suspicious’:

  1. The Will is homemade and no professional advice has been sought;
  2. The Will contains spelling mistakes and/or uses language which would not have been used or understood by the testator;
  3. The Will contains untrue statements and/or contains features which are uncharacteristic for the testator;
  4. The Will contains a radical change in dispositions made without a rational explanation and/or generally the dispositions cannot be rationally explained;
  5. The relationship of the beneficiary to the testator was not close;
  6. The witnesses to the Will were not sufficiently independent;
  7. 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;
  8. Any unusual behaviour of the testator at the time the Will was made;
  9. The testator lacked testamentary capacity and/or there is evidence generally of the testator’s mind failing;
  10. The contents of the Will were read or explained to the testator, particularly where the Will is complex because of the number of potential beneficiaries or the nature of assets in the estate.

In the case of Fuller v Sturm [2002] it was held that if the suspicion of the court is aroused in any way about the circumstances of the drafting of a Will:

" must be more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly"...All the relevant circumstances will be scrutinised by the court which will be "vigilant and jealous" in examining the evidence in support of the will".

In the case of Gill v RSPCA [2010] the Court of Appeal held that a Will was invalid on the grounds of want of knowledge and approval largely because of the lack of supporting evidence produced by the party relying on the disputed Will. There are many other examples of Wills being held invalid on this basis in recent years.

If there is proof of testamentary capacity and due execution, then knowledge and approval will normally be presumed, but ultimately it will depend on the evidence and circumstances in each case. In cases where the Will has been drafted by a solicitor, it will be extremely difficult to argue that a testator did not understand and approve the contents and therefore, although these claims are on rise, it is by no means an easy route for disgruntled family members looking to challenge the validity of a Will.  

Should you wish to discuss a disputed Will, please do not hesitate to contact us.

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On April 10th 2013 Thomas W.R. Astaphan commented:

A very helpful article. I will ensure that I become a regular reader of your articles.

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