Knowledge and Approval of the Will Contents

23 October 2022 8:15 am

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider the requirement that a testator must know and approve of the Will contents for it to be valid

“Knowledge and Approval” – one of the fundamental requirements of a valid Will

We have discussed the requirement of “testamentary capacity” in a number of blogs over the years but hardly anything about “knowledge and approval” since it is rarely in issue – possibly as an aside to the main thrust of most claims against the legal validity of a Will; namely that the testator had or didn’t have legal testamentary capacity. For examples of this, please consider the following:

5 things to know about Testamentary Capacity – Will Claim Solicitors

Testamentary capacity and the Golden Rule – Will Claim Solicitors

The simple truth is that “knowledge and approval” is probably the faithful servant of the primary legal requirement – capacity. In other words and in most cases, it is likely to go hand in hand with a finding of capacity (or finding against capacity). For example, a seriously demented patient who made a Will which is then unraveled after death with clear evidence that he/she had no capacity at all is equally likely to reveal that he/she didn’t or couldn’t have known and approved the contents of the Will.

Accordingly, a claim purely in relation to the question of “knowledge and approval” is a very rare find – but one has been ruled upon recently albeit with a twist of undue influence thrown in. However for our purposes we are concentrating on the “knowledge and approval” principles. It was assumed within the decision that the testator had testamentary capacity at the time the disputed Will was made.

Reeves v Drew and others [2022] EWHC 159 (Ch)

This is a case which is remarkable in the sense that it was dominated by “lay” witness evidence to prove:

the deceased or testator was illiterate/literate;
the disputed Will was not read to him and/or he couldn’t have read it and understood its meaning.

From a lawyers perspective these features are “remarkable” given the risks each side would be exposed to in relying on the lay witnesses. Put simply, a Judge could prefer one side or the other and simply accept the word of one witness over another. However, one suspects the fight was lubricated by the fact the testator left a considerable fortune of up to £100m. In other words it was worth fighting over regardless of the risk.

Here is the link:
Reeves v Drew & Ors [2022] EWHC 153 (Ch) (31 January 2022) (bailii.org)

So what is “Knowledge and Approval”

It is the requirement that the testator knows and approves of the contents of the Will at the point of its execution. In other words, that it is truly his last Will and Testament, following the instructions he/she gave to the Will drafter.

In Reeves the Will was drafted and executed by a Solicitor, creating (in law) a presumption of knowledge and approval – rebutted where those challenging the Will can arouse the suspicion of the Court in which case the burden of proof is reversed requiring the Will propounder (supporter) to prove knowledge and approval. The following is taken from paragraph 16 of the Judgment:

The person seeking to propound a will has the burden of establishing that the deceased knew and approved its contents; while there is a strong presumption to such effect if the will has been properly prepared and executed by a solicitor, where there is evidence from those challenging the will that arouses the suspicion of the court, the presumption is weakened and may require positive proof from the propounder;

The legal definition is further (helpfully) developed in paragraph 338:

In my view, it is not helpful to consider this question by reference to shifting burdens of proof. The burden remains on the Claimant throughout to prove on a balance of probabilities that the 2014 will truly represented the deceased’s testamentary intentions. She is greatly helped in that process by the fact that the deceased had testamentary capacity and the 2014 will was executed properly in accordance with s. 9 of the Wills Act 1837. But all the circumstances must be looked at in order to determine objectively (see Sherrington v Sherrington [2005] EWCA Civ 326 at [70] – [71]) whether the deceased did actually know what was written in his will when he signed it. As Lord Neuberger MR explained in Gill v Woodall:

“14 Knowing and approving of the contents of one’s will is traditional language for saying that the will represented [one’s] testamentary intentions: see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.”

The Judge found that the deceased would not have been able to read the Will and that there was no evidence he did so. There was a suspicion in relation to the Claimant’s “deep involvement” with the Solicitor who prepared the Will and arranged for its execution. Moreover, he dramatically found that the Solicitor’s involvement “was not merely incompetent; it was reckless and quite possibly dishonest” (paragraph 407). He found in consequence the Claimant had not proved the deceased knew and approved the contents of the disputed Will. Surprisingly perhaps, given the strong suspicions, he did not find that the Will was procured as a result of undue influence.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/nowin-no-fee/.