Knowledge and Approval and Undue Influence in Will Contest and Will Dispute Claims
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss knowledge and approval and undue influence in Will contest and Will dispute claims
Reeves v Drew [2022] EWHC 159 (Ch)
In this very recent case both knowledge and approval and undue influence were raised as the key grounds for contesting the Will as per the following link:
Reeves v Drew & Ors [2022] EWHC 153 (Ch) (31 January 2022) (bailii.org)
We previously discussed a very similar case in a much earlier blog in 2017(!):
The importance of knowledge and approval – Will Claim Solicitors The importance of knowledge and approval – Will Claim Solicitors
What is knowledge and approval (and how is it different from mental or “testamentary” capacity)?
Whereas having testamentary or sufficient mental capacity is simply having the ability to make the choices necessary to make ones own Will; knowledge and approval is simply the ability to understand and approve the choices that have been made. Put even more simply, it is an ability to recall the choices that one has already decided upon. In Reeves this is referred to under paragraph 342:
But I bear in mind the limited scope of my inquiry in relation to knowledge and approval, where testamentary capacity has been conceded, as lucidly expressed by Lewison LJ in Simon v Byford [2014] EWCA Civ 280:
“it is knowledge and approval of the actual will that count: not knowledge and approval of other dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made.”
The legal principle then is quite simply that the testator (the person making the Will) must know and approve its contents at the time of execution. The person who is relying on or “propounding” the Will must prove that the testator knew and approved its contents. However, that burden is discharged by proving testamentary capacity and that the Will was properly executed (signed in front of two witnesses who also signed it). As per paragraph 336 in Reeves, if both these are proved then there is a presumption of knowledge and approval which is only displaced if there are suspicious circumstances around the making of the Will. Where there are suspicious circumstances the Court is likely to require further affirmative evidence of knowledge and approval from the Will propounder.
A Will drawn up by and witnessed by a Solicitor is usually sufficient
A Will drawn up by a Solicitor who assists with the execution of the Will and quite possibly acts as one of the two witnesses is usually sufficient evidence to discharge the burden of proof. However as noted in Reeves (paragraphs 340 and 341), there have been a number of cases where notwithstanding the involvement of Solicitors, the Will has been set aside on the basis of lack of knowledge and approval. Reeves proved to be another one. Whilst it was found the testator had the capacity to make the choices so far as his testamentary intentions were concerned, the Court ruled there was insufficient evidence of his knowledge and approval of those choices when he came to execute the Will (as per paragraph 403). It appeared to regard the Solicitor’s involvement and notes to be somewhat unsatisfactory (paragraphs 403 to 407:
- As must be clear from the above, I have come to the conclusion that the Claimant has not proved that the deceased knew and approved the contents of the 2014 will, despite being of sound mind and the will having been duly executed.
- Mr Dumont QC submitted that the presumption in the Claimant’s favour flowing from capacity and due execution is a strong one not easily displaced. I agree. He also submitted that the test of knowledge and approval is a simple one as explained by the Court of Appeal in cases such as Fuller v Strum [2001] EWCA Civ 1879 and Gill v Woodall (supra), namely whether, on the balance of probabilities, the 2014 will represents the deceased’s testamentary wishes. Again I agree.
- Where we part company is in his analysis of the evidence. He said that if there were deficiencies in the will making process, they did not affect the core issue that the deceased had decided to change his will in a significant way and gave instructions to such effect. Mr Dumont QC accepted that this was a very substantial change to the 2012 will but said that the importance of it had been overstated by the Defendants. There were good reasons, if reasons were needed, for the change in the deceased’s testamentary intentions as set out in Mr Curnock’s attendance notes of the 11 December 2013 meeting. He also pointed out that there appeared to have been a substantial change between the 2005 will and the 2012 will, with the Claimant being brought back in, although the reason for that is fairly obvious given the Claimant was then living with the deceased.
- However that alleged dramatic change to the deceased’s testamentary intentions, together with the deep involvement of the Claimant with the solicitor tasked with implementing that change in the Claimant’s favour are circumstances that do very much excite the “vigilance and suspicion of the court” (see Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 21st ed at 10-034). I do not accept that the deceased’s purported reasons for his change of mind were as set out in Mr Curnock’s attendance notes and I am not satisfied that I can rely on those attendance notes as an accurate record of the deceased’s instructions.
- One might have thought that the involvement of a solicitor would strengthen the presumption of validity. In this case it is quite the reverse. The way that Mr Curnock went about the preparation of the 2014 will was not merely incompetent; it was reckless and quite possibly dishonest. It could be said that if this was a fraud on the deceased, then those involved would likely have done a better job of it. But it should not be forgotten that Mr Curnock must have thought that the incomplete will file that he had with him when he prepared his first witness statement contained all the necessary documents for proving the 2014 will, including: the first attendance note of the 11 December 2013 meeting; the attendance note of the 23 December 2013 meeting; the letters of 20 December 2013 and 3 January 2014; and Mr Riley’s attendance note of the 7 January 2014 meeting. He prepared his first witness statement on the basis of those documents alone and said that he had only met the Claimant after the 2014 will had been signed. Then the emails and his notebook came to light together with the records of telephone calls and texts which wholly undermined his carefully put together story that there was no prior relationship with the Claimant, that she had no involvement in the will making process and that his attendance notes were accurate.
UNDUE INFLUENCE – THIS ELEMENT OF THE CLAIM FAILED
In Reeves notwithstanding the possible dishonesty revealed (at paragraph 407) above, this element of the claim failed. This again reveals how difficult it is to prove undue influence, an issue which we raised in a much earlier blog in 2017:
The Trouble with Undue Influence – Will Claim Solicitors
The problem is always the lack of evidence. Proof of undue influence rests with the person making the allegation – one cannot shift the burden of proof by simply raising a “suspicion” in the same way that this is possible in relation to lack of knowledge and approval.
Not withstanding our comments above this is probably raised as an issue or potential issue in over 90% of the enquiries we receive but is usually assumed to have taken place simply because of the change of Will. Very rarely is there any direct evidence and moreover, it is usually completely undermined by the passage of time in most Will dispute or Will contest claims.
How is undue influence undermined by the passage of time?
Undue influence as an element of a Will contest or Will dispute claim against the legal validity of a Will is undermined by this simple fact; it is highly unlikely that the malign influence could be maintained against the testator in the years that follow the making of the Will until death. This same issue was succinctly dealt with in Reeves at paragraph 437 as follows:
In this case, the Defendants have to prove not only that the control was so great that the deceased was effectively forced into making the 2014 will but also that the domination continued and was so pervasive that the deceased was unable to change his will thereafter. The evidence that I have heard points the other way. The deceased was not shackled to the Claimant. He was entirely free to meet with whoever he wanted, including solicitors, friends and business associates. He could drive, including by quadbike, wherever and whenever he wanted. He went away on holiday with others and without the Claimant. He went out riding.
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