Challenging the Validity of a Will

A frequently travelled route to challenge the validity of a Will is to allege the testator did not know or approve its contents. But what does this mean?

A claim of lack of testamentary capacity or undue influence – two other methods to challenge a Will – are perhaps more recognisable concepts. A claim of lack of knowledge and approval is often raised alongside these other claims, but its meaning has a more subtle definition.

We see challenges of this kind regularly concerning the Wills of elderly testators (or those who were very ill at the time of its making), particularly when there has been a significant departure from the preceding Will.

The testator must of course understand the nature and effect of their Will. And those who seek to prove its validity must also prove the testator knew and approved its contents. By signing the Will, where the testator had testamentary capacity there is a presumption this is the case. That presumption is strengthened if the Will is prepared by a solicitor which is then read to the testator before it is signed and witnessed. It is further strengthened if a medical opinion was also obtained (also known as the ‘golden rule’).

Of course, most Wills pass this threshold without incident, but there are times when a more detailed investigation concerning the circumstances leading to the Will’s preparation is called for. Those circumstances include:

If the testator had difficulties comprehending the terms of the Will;

• The beneficiary benefitting from the changes was closely involved in its preparation;
• Witnesses to the Will are unable to confirm the testator knew they were signing a Will; and
• Neither a solicitor nor a doctor were involved in the preparation of the Will.

For these reasons we often see homemade Wills coming under greater scrutiny. An obvious but not uncommon example is the homemade Will prepared by its main beneficiary. Those circumstances are likely to ‘excite suspicion’ – even where there are innocent circumstances – because the Court will want to be satisfied the testator not only knew and approved the contents of their Will, but that it was also executed properly, a step all too easy to trip upon. Also, if a Will contains complex and detailed provisions, a Court will want to ensure the testator was able to broadly understand its effects but that does not have to understand every effect and consequence of their Will. Complications can arise when the testator was frail and elderly to the point a real doubt emerges.

This is not to say all homemade Wills shall fail. In Sharp v Hutchins [2015] the elderly testator left his Estate to a handyman who had befriended him over the last years of his life. Previously, a Court would consider all the relevant evidence available and then come to a conclusion whether or not the burden of establishing knowledge and approval of the contents of the Will had been discharged. In this case the Court considered whether there were sufficient facts to excite suspicion and if so, whether that suspicion was allayed. But it found the testator did have knowledge and approval of the Will.

Wills prepared by solicitors are also not immune to such a challenge. In Burgess v Hawes [2013], the Court of Appeal found the elderly testator neither had testamentary capacity nor approved the contents of her Will. Her daughter, who significantly benefitted from the new Will, was the controlling force behind the changes and it was she who made arrangements to attend and sit in the discussions with the solicitor. The Court held the testator did not have an opportunity to fully appreciate the contents before its execution.

In Tociapski v Tociapski [2013], the elderly testator left his Estate to one son when a few years earlier he had made a Will leaving his Estate equally between his two sons. The Court found the testator did not know and approve the Will which was arranged with a new solicitor by the son who solely benefitted from the changes. The defendant son also took no part in the proceedings and therefore gave no evidence to support the presumption of knowledge and approval.

Although these cases illustrate how a successful claim can be made, the Court will not lightly interfere with the presumption of knowledge and approval for to do so would encourage more challenges in the absence of clear evidence. It follows any such claim must have realistic rather than fanciful prospects of success so that a real doubt emerges. If that threshold is reached it will be for those seeking to confirm the validity of the Will to prove the testator had the requisite knowledge and approval. As ever, taking the right steps at the right time can go a long way to ensuring such a claim never arises.

If you have any queries concerning the validity of a Will, please contact Noel McNicholas on 01455 620805 or nm@thomasflavell.co.uk.