Making a Challenge: Lack of Knowledge and Approval in Wills

When someone makes a Will, they need to understand the contents of the document and give their approval. If they don’t, after their death it may be possible to challenge the Will and ask the courts to declare it invalid. In signing a Will, it is crucial that the person making the Will (the testator), does so freely and knows what they are signing. When this is not the case, disputes can arise post death and a Will can be contested.  We look at the lack of approval in Wills and the effect it can have.

When is a Will invalid?

  There are several grounds on which a Will could be declared invalid:

  • It has not been correctly signed and witnessed
  • The testator lacked sufficient mental capacity when they signed
  • The Will has been altered
  • An attempt has been made to destroy the Will
  • The testator was unduly influenced by someone to make the Will in the terms that they did
  • The testator had a lack of knowledge and approval of the Will


What is want of knowledge and approval of a Will?

It is generally assumed that a testator knows and approves the contents of their Will. However, in some circumstances suspicions may arise. For example, if someone else has been instrumental in helping the deceased change their Will and taken over the process.  Concerns can arise that either the testator does not fully understand what is in the Will or that they are being unduly influenced into making a Will in someone’s favour. This is particularly concerning if the testator is frail or has limited eyesight and has relied on others to prepare and explain the Will for them.  A professional Willwriter will take precautions to ensure that safeguards are applied and will document the process.  Their files can be requested if needed.  However, if a homemade Will is signed, then there may be concerns over the testator’s understanding of the document.  

What does the court look for in assessing knowledge and approval?

When a court needs to decide if a testator knew and approved their Will’s content, they typically apply the Barry v Butlin (1938) test. If no suspicious circumstances exist and the testator was mentally competent, the court presumes they knew and approved the Will.

However, if the Will’s drafting raises the court’s suspicion, the court won’t approve it unless that suspicion is dispelled. The burden falls on the person presenting the Will to the Probate Registry to prove the testator’s knowledge and approval. They must provide evidence to support this claim.

The case of Hawes v Burgess (2013) illustrates a lack of knowledge and approval rendering a Will invalid. The testator’s daughter arranged a new Will, made all the arrangements, attended the drafting meeting, spoke for her mother, and answered questions. The mother never saw a draft before signing. This new Will surprisingly disinherited one child who had a good relationship with the mother. The court found these circumstances suspicious and the person presenting the Will failed to prove the mother’s knowledge and approval. Consequently, the Will was declared invalid.

Challenging a Will

If you have concerns that a Will is potentially invalid because the testator did not know what it contained or did not approve it, speak to an expert contentious probate solicitor as soon as possible. Most importantly act quickly, to prevent the estate from being distributed before you can make a legal claim.

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