Civil Fraud Quarterly Round-Up: Q2 2020
In the recent case of Sharp v Hutchins (2015) the High Court has upheld the 2013 will of elderly bachelor Ronald Butcher, leaving the beneficiaries of an earlier will who expected to receive a share of Mr Butcher’s estate disappointed.
Daniel Sharp (the Claimant) brought proceedings asking the Court to pronounce in favour of a will dated 5 January 2013 (the 2013 Will) prepared by Mr Butcher, in which he left his entire estate to the Claimant. The Defendants to the claim were Mr Butcher’s cousin and the two children of Mr Butcher’s close school friend. The Defendants were the beneficiaries of Mr Butcher’s estate under an earlier will made in 2011 and they challenged the 2013 Will on the grounds of want of knowledge and approval on the part of Mr Butcher.
The Court heard evidence that Mr Butcher died unexpectedly at home aged 73 in May 2013. His only surviving relative was his cousin Joyce to whom he was close growing up. In the years preceding his death his cousin had moved to Devon and they saw each other less regularly. Evelyn and Peter, the children of a school friend of Mr Butcher’s, were also close to Mr Butcher and described him as their “Uncle Ron”. Joyce, Evelyn and Peter were all beneficiaries under wills executed by Mr Butcher in 1991, 2003 and 2011.
The Court also heard that the Claimant, a local builder, first met Mr Butcher in around 2007 in a café. Mr Butcher approached the Claimant for help with a leaking gutter, which the Claimant quickly fixed and did not charge Mr Butcher. The Claimant described Mr Butcher as a bit lonely and over the following years the Claimant would visit Mr Butcher occasionally to help with “odd jobs”. The Claimant was kind to Mr Butcher and over time they struck up a new friendship, although the Claimant conceded it was not a “close” relationship.
The 2013 Will was witnessed by a financial advisor who was visiting Mr Butcher at his request and a plumber who was carrying out work at Mr Butcher’s bungalow and who had worked for Mr Butcher on a few previous occasions. The 2013 Will, as with Mr Butcher’s previous wills, was prepared and executed without the assistance of a solicitor and using a will template of the kind that is readily available to a person wishing to make their own will.
The 2013 Will appointed the Claimant as the executor and sole beneficiary of Mr Butcher’s estate. The Claimant gave evidence that during a visit to Mr Butcher in mid-January 2013, Mr Butcher handed him the 2013 Will and asked him to read it. The Claimant was shocked to learn of the contents and after asking Mr Butcher whether he was sure about the contents, Mr Butcher said he did not want to talk about it. Mr Butcher died unexpectedly a few months later.
Decision and Comment
The Judge concluded that she was “satisfied that the 2013 Will was executed with the knowledge and approval of Mr Butcher and that he intended it to give effect to his testamentary wishes”, and pronounced for the 2013 Will.
It is often the case that the issue of knowledge and approval is raised alongside concerns about a testator’s capacity. In this case, Mr Butcher’s testamentary capacity was not in dispute and ordinarily proof of testamentary capacity and valid execution (in accordance with section 9 of the Wills Act 1837) is sufficient to establish knowledge and approval, which is then assumed.
However, where the circumstances relevant to the preparation and execution of a will are suspicious the person wishing to rely on a will must produce affirmative evidence sufficient to prove knowledge and approval. In the case of Simon v Byford & Others (2014) Lord Justice Lewison commented that when the Court is looking at the issue of knowledge and approval, what it is looking for “is actual knowledge and approval of the contents of the will… [which] requires no more than the ability to understand and approve choices that have already been made”.
In light of this the Judge in Sharp v Hutchins was required to consider whether Mr Butcher understood (a) what was actually in the 2013 Will when he executed it and (b) what the effect of the 2013 Will would be. The Judge concluded that there was sufficient evidence before her that the Claimant had discharged the burden of proving, on balance, that Mr Butcher did understand what was in the 2013 Will and what its effect would be. The Judge said that “any degree of suspicion was relatively low because it was not a case where the 2013 Will was procured by the person benefitting under it”.
The Judge was able to reach this conclusion for several reasons, including:
In this case the Judge found that any degree of suspicion surrounding the circumstances of the 2013 Will was relatively low and that the Claimant was able to comfortably establish that Mr Butcher did know and approve of the contents and effect of the 2013 Will and was assisted in doing so by the fact that the Claimant himself did not procure the changes to the 2013 Will.
Typically, want of knowledge and approval claims are more likely to succeed when there is a combination of different suspicious factors. Ryan Mowat’s blog “Suspicious Wills” lists the type of circumstances the court might consider to be suspicious, which include the will being homemade with the involvement of the beneficiary, containing spelling mistakes and/or irrational dispositions and where the witnesses are not independent.
It is a fundamental principle of English law that testators should generally be free to leave their estate to whoever they wish. Whilst it might seem strange that an elderly bachelor would leave his entire estate to someone who was not a close friend or family member (thus disinheriting those he had previously wished to benefit under earlier wills), it is clear that the Court is “not engaged in some form of approval of disapproval” in relation to a testator’s testamentary intentions, although the Court will be more interested if the testamentary provisions appear irrational.
This case reminds us that, for disappointed beneficiaries, challenging a will on the grounds of want of knowledge and approval is not straightforward and requires more than a testator behaving unexpectedly in how they choose to distribute their estate under their will.
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