It is a legal requirement that when someone makes their Will, they must have knowledge and approval of its contents. If they did not, then it may be possible to challenge the document after their death.
What is Knowledge and Approval of a Will?
When a Will is signed, it is usually presumed that the individual signing it, known as the testator, knows what is in the Will and approves this. When a Will is drafted by a solicitor, they will generally take precautions to check that the testator understands what they are signing. Where necessary, the Will can be read and explained to the testator.
The case of Banks v Goodfellow [1870] states that for a Will to be valid, the testator must:
- Understand the implications of making the Will and the effect that it will have
- Understand the extent of the property that they are disposing of in the Will
- Be able to comprehend and appreciate any claims there might be against their estate
- Not be subject to any disorder of the mind that will disrupt their sense of what is right or mean that they cannot exercise their natural faculties
What is a Lack of Knowledge and Approval of a Will?
Lack of knowledge or approval exists when a testator is not fully aware of or does not understand the contents of their Will.
If someone wishes to challenge a Will on the basis of lack of knowledge or approval, they will need to establish their case, as the general presumption is that a testator understands and approves a Will that they have signed.
Circumstances where a question could exist over knowledge and approval include the following:
- The Will is not in accordance with the wishes the testator has previously expressed
- The Will has been prepared or arranged by someone who is named as a beneficiary
- The Will was signed by someone else on behalf of the testator
- The testator was deaf or blind, and no clause is included in the Will stating that the Will has been read and explained to them
The court will want to be satisfied that the contents of the Will represent the testator’s wishes.
If the individual challenging the Will can show that there is a risk that the testator did not know or approve the contents of their Will, the person wishing to rely on the Will must provide sufficient evidence to the contrary.
An Example Case: Hawes v Burgess [2013]
The case of Hawes v Burgess [2013] found that a woman who cut her son out of her Will had a lack of understanding and approval of the contents of her Will.
Daphne Burgess, a woman who died at the age of 80, was taken to a solicitor by her daughter Julia. Mrs Burgess wanted to make changes to her Will in respect of her funeral service and burial arrangements. The daughter stayed in the room with Mrs Burgess while the solicitor took instructions for the Will. The daughter supplied an incorrect figure to the solicitor for one of the clauses in the Will.
A new Will was prepared in very different terms from an earlier Will. Mrs Burgess had originally made a Will dividing her estate equally among her three children. The new Will excluded her son, with whom Julia had fallen out. Mrs Burgess and her son had not fallen out and remained close until her death.
In addition, while Mrs Burgess told Julia that she wanted to make changes to her Will in respect of her funeral and burial arrangements, she did not mention wanting to cut her son out of the Will.
Julia took charge of making the arrangements to see the solicitor and gave instructions to the solicitor on the contents of the Will.
The daughter, who was not involved in the making of the new Will, together with the son, challenged the validity of the new Will on the grounds that Mrs Burgess did not know and approve its contents.
The Court of Appeal agreed with the son and daughter, finding against Julia. She was not able to prove that her mother had knowledge and approval of the contents of the Will.
Contact Our Wills Solicitors
If you have concerns over the Will, estate or administration of someone who has died, our contentious probate lawyers can give you the advice you need.
To speak to one of our expert Wills solicitors, ring us on 0330 173 3980, email us at info@witansolicitors.co.uk or fill in our contact form, and we will talk through your situation with you and discuss how we can assist.
FAQ
Can I contest a Will if I am concerned that the testator did not understand what they were signing?
If you have concerns that someone did not know or approve the contents of their Will, you may be able to challenge it. You should speak to a solicitor promptly, as there are strict time limits for challenging Wills.
If you would like us to assist you, we will go through the facts of what has happened and advise you of the strength of your case and the evidence that exists. Where necessary, we can take steps to secure evidence in support of your claim, such as witness statements, the solicitor’s file from the preparation of the Will and medical reports.
What evidence do I need to challenge a Will?
The evidence needed depends on the grounds on which you are raising a challenge. You may need to show that the deceased did not have the mental capacity to make a Will or, alternatively, that they did not know or approve its contents.
We can discuss with you the best approach in your circumstances and how to put a robust case together.
When can a will be challenged?
The grounds on which a Will can be challenged are:
- Lack of testamentary capacity, meaning that the testator did not have the mental ability to make a Will
- The Will was not correctly signed or witnessed
- The testator lacked knowledge and approval of the contents of the Will
- Someone unduly influenced the testator into making their Will in the terms that they did
- Fraud or forgery was involved
- Someone the deceased supported prior to their death or a close relative such as a child or spouse was not included in the Will or received less than they needed
It is important to act quickly if you have suspicions over the validity of a Will. This is both because there are time limits for bringing a claim and because it can be easier to collect evidence while matters are still as recent as possible.
For information on our Will disputes services, see our contentious probate page.
