Want of Knowledge and Approval of a Will

One of the requirements for a Will to be valid is that the Testator must know and approve the contents of their Will at the time of execution.

If a Will has been signed by the Testator there is generally a presumption that they knew of and approved the contents. However, if a person raises suspicions as to the Testator’s knowledge and approval when they executed the Will, then the burden of proof passes to the person seeking to propound the Will.

Claim for want of knowledge and approval

In the case of (1) Henrietta Ingram (2) Tom Whitefield -v- (1) Simon Timothy Abraham (2) Hilary Lynda Abraham [2023] EWCH 1982 (Ch) the Claimants, the Deceased’s two children, brought a claim to pronounce against the validity of a Will which had been prepared by their mother in 2019.

Their mother had previously prepared a Will in 2008 which provided for a 50/50 split of her estate between her two children. However, in 2019 the First Defendant, the Deceased’s brother, drafted a new Will for his sister which left her entire residuary estate to him. During the case, the First Defendant argued that he was acting on his sister’s instructions. The residuary estate was worth in the region of £389,000.

The claim was originally issued in 2021 and the basis of the claim was a sole challenge as to the capacity of the Deceased at the time of executing the 2019 Will. On 17 March 2022, the claim was amended to add a challenge to the validity of the 2019 Will due to the Deceased’s knowledge and approval at the time of execution of the Will.  The Claimants ultimately abandoned the capacity challenge in January 2023.

Challenging a Will due to lack of knowledge and approval

The Claimants accepted that the signature on the 2019 Will was their mother’s signature, however their challenge focused on the genuineness of the initialling at the foot of each page of the 2019 Will. Their claim was that this was in "stark contrast" of their mother’s usual practice of initialling documents which therefore raised suspicion as to their mother’s "state of mind/ health", which called into question whether their mother had the capability to understand and approve the will and/or its effects.

The Claimants’ claim described the Deceased as a hard-working single mother who was very "proud of her financial achievements". She had previously assisted the Claimants financially having gifted £90,000 to the First Claimant for a house deposit, and £12,000 to the Second Defendant to assist with his daily living expenses over a period of time.

The First Defendant’s position was that the case was nothing more than a simple case of the Deceased "changing her mind" about who she wished to benefit from her estate. The First Defendant stood by his assertion that he was carrying out the Deceased’s wishes when preparing the 2019 will which the "Deceased signed, initialled, read and had read to her, and which she could not have failed to have understood".

The Second Defendant did not take an active part in the proceedings and set out her position was to accept the Court’s decision.

How do you prove want of knowledge and approval

The Court applied the two stage test which was established in the case of Gill -v- Woodall [2011] Ch 380 where the Court of Appeal confirmed that the correct approach to considering knowledge and approval of a Will was to ask a single question; namely had the testator understood: (a) what was in the Will when she signed it; and (b) what its effect would be.

The Court of Appeal held that "this is a single issue to be determined by reference to all of the relevant evidence, and the appropriate inferences to be drawn from the totality of the evidence available".

After considering the evidence at trial put before him, HHJ Berkley came to the conclusion "there were ample aspects of the background and history of this regrettable matter to ‘excite the suspicion of the Court’. The most obvious is the fact that Simon produced a Will of which he was all but the sole beneficiary".

HHJ Berkley concluded that on his understanding of the evidence he found that what the Deceased wanted to achieve from her Will was to "secure the benefit of her estate for her children".   HHJ Berkley concluded that the Deceased believed that by making the 2019 Will she was entrusting the First Defendant to "distribute it as per her orally and repeatedly expressed wishes to divide it fairly between Tom and Hilary".

HHJ Berkley pronounced against the validity of a Will as a result of the Defendants "failure to discharge the burden of proof to establish that the Deceased, when she signed the 2019 Will understood: (a) what was in the 2019 Will when she signed it; and (b) (more emphatically) what its effect would be".

Challenging a Will

Challenging a Will can often be an emotional and stressful time, something our contentious probate solicitors are all too well aware of.

"As seen in this case they can often take a long time to resolve and this may put people off investigating their suspicion around the circumstances of the execution of a Will," said Jade Wood, Contentious Probate Paralegal.

"It is often lost in Will disputes how the most important person in the dispute is the Testator who is no longer around to give evidence as to what happened. This case illustrates the significance of the Deceased’s character and the weight that added to the Judgment."

"In these cases, however, I would urge anyone who has a suspicion on the validity of a Will to seek professional legal advice as soon as possible" added Jade.

How can we help

For expert legal advice on challenging a Will or an Inheritance Act Claim contact our Contentious Probate Solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk.

Subscribe to our newsletter

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.