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30 April 2013 | Comment | Article by Roman Kubiak TEP

Knowledge and approval of wills – case law update


It is not often that cases of knowledge and approval of wills come before the courts. However, Roman takes a look at three cases which have been heard by the courts this year alone and their implications.

In making a will, the law states that it is essential that a testator both knows and approves of the content of their will.

So far this year, the question as to whether a testator had knowledge and approval of their will has come before the courts three times.

In Burgess v Hawes[2013] EWCA Civ 94, the Court of Appeal upheld the first instance decision of the County Court in which Her Honour Judge Walden-Smith pronounced against the validity of the deceased’s last will.

Daphne Burgess (‘Mrs Burgess’) executed a will in 1996 leaving her residuary estate equally between her three children.

Mrs Burgess then executed a new will in 2007, in which she left specific legacies to her three children, but the residuary estate to only two of her children. The 2007 will was drafted by an independent, experienced will writing solicitor. The meeting, during which the instructions for the will were taken from Mrs Burgess, was arranged by one of her daughters, Julia, who was also present at that meeting. Julia was also present at the meeting between Mrs Burgess and the solicitor when the will was executed.

The judge at first instance found the will to be invalid on the grounds of (i) lack of testamentary capacity, and (ii) a lack of knowledge and approval.

Julia appealed this decision.

Although the Court of Appeal expressed strong doubts about the first instance finding that Mrs Burgess lacked testamentary capacity, it considered that the will was invalid on the basis that Mrs Burgess lacked knowledge and approval of its content.

Mummery LJ, giving the leading judgment, said:

“Julia made contact with Woodfines in December 2006, made the appointment, took the Deceased to the firm’s offices and remained in the room with the Deceased throughout the discussions that took place with Mr Webster when he took instructions and when the will was executed […] Julia was found to be the “controlling force” behind the instructions given for the drafting of the 2007 will […].Further, the Deceased had not had an opportunity to check and approve the contents of the draft will before she went to Mr Webster’s office to execute it.”

Many commentators have suggested that, in making a finding of fact that Julia had been the ‘controlling force’, the court were essentially saying that Mrs Burgess had been the subject of ‘undue influence’; traditionally a more difficult ground on which to challenge a will.

Following that decision, in March this year a will was declared invalid on the basis that the testator lacked knowledge and approval of the will in the unreported case ofTociapski v Tociapski(2013).

In this case, the testator made wills in 2007 and 2009.The former left his estate equally between his two children, and the latter left his entire estate to only one of his children. The other child (C) therefore brought a claim to set aside the 2009 will on the basis that the testator’s capacity was so impaired that they were unable to know and approve of its content.

C relied on expert medical evidence which stated that, although it could not be concluded the testator lacked testamentary capacity, the testator’s capacity “was impaired on the basis of marked generalised atrophic and ischaemic changes, and that those changes had impacted adversely on F’s (the testator’s) capacity to know and approve the contents of the will.”

A third case this year in which knowledge and approval was relied upon to have a will set aside isRe Wilson(deceased);Turner v Phythian[2013] EWHC 499.

In this case, the will was drafted by one of the principal beneficiaries, the only other beneficiary under the will being the will drafter’s wife.

In such circumstances, where a beneficiary has prepared the will, the court requires affirmative proof that the testator knew and approved of the content of the will.

In this particular case it was noted that there was no evidence, other than from the will drafter, that the testator had ever read the will, or had the will read over to her. The will drafter also acknowledged that the testator did not read the will immediately before signing it, nor that there was any explanation or discussion as to its content in the presence of the witnesses.

The court further noted that all discussions between the will drafter and testator took place when only the two of them were present, that the will drafter took no substantial notes and that the testator received no independent legal advice on the content of her will.

The court ruled in this case that the will drafter had provided “no cogent evidence that the deceased had understood what she was doing when she signed the will.”

In this case, the court also held that the testator lacked testamentary capacity, and confirmed the principle propounded inKey v Key[2010] 1 WLR 2020, that “a conclusion that a testator lacks testamentary capacity necessarily compels a conclusion that he did not know and approve the contents of his will.”

What seems apparent from the above cases, and what many commentators agree, is that where there are concerns regarding the validity of a will it is often advisable also to plead lack of knowledge and approval. Even if the courts are not willing to make a finding that a testator lacked testamentary capacity or was unduly influenced, they may more readily find that a will is invalid by reason of a lack of knowledge and approval.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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