Where A Solicitors Involvement Doesn’t Automatically Prove Knowledge And Approval
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider knowledge and approval where a Solicitor is involved in the Will execution
What is “knowledge and approval” in Will contest or Will dispute Claims
There are essentially three key elements which are needed for a Will to be valid:
1. Capacity to make it;
2. Knowledge and approval;
3. Compliance with section 9 of the Wills Act 1837 (the Will is signed by the testator in front of two witnesses who also sign it etc).
Capacity is the usual ground for disputing or contesting the legal validity of a Will. In other words that the testator (who is the person making the Will) must have sufficient mental capacity to make it.
Compliance with section 9 of the Wills Act 1837 deals with the requirements of signing and witnessing.
A little used or known ground is that the testator must know and approve the contents of the Will. Plainly it will usually stand or fall in tandem with the question of whether the testator had sufficient mental capacity to make a valid Will.
Knowledge and approval is not entirely linked to the question of capacity in Will dispute and Will contest claims
We have discussed this in more detail in earlier blogs, for instance:
CONTESTING A WILL– ANOTHER KNOWLEDGE AND APPROVAL CASE (willclaim.com)
It was considered again in a recent decision called Biria v Biria and others [2024] EWHC 121 (Ch)
Biria v Biria & Ors [2024] EWHC 121 (Ch) (09 February 2024) (bailii.org)
In this instance, it was reasonably clear that capacity to make a Will would not be found although knowledge and approval (and undue influence) were also considered as grounds in the comprehensive Judgment by Deputy Master Bowles. However, the slightly unusual feature of the case, was the fact that notwithstanding the evident lack of capacity on the part of the testator (albeit found after the event) a Solicitor (Notary) was apparently willing to participate in the execution (but not drafting it seems) of the disputed Will.
Capacity and “want of knowledge and approval” are however two distinct legal concepts as the Judgment by Deputy Master Bowles makes clear. He explains this at paragraph 115 of his Judgment as follows:
As is well understood, want of capacity and want of knowledge and approval are two different concepts. Capacity goes to the ability to make a will. Knowledge and approval goes to the question as to whether the contents of the particular will executed, or purportedly executed, by a testator, truly reflect the testator’s intentions as to those contents and as to the effect of those contents. A testator with capacity may, nonetheless, in particular circumstances, not understand and approve the contents of his will, or its effects, so that the will fails for want of knowledge and approval. Conversely, it is not, I think, wholly impossible to think of circumstances where a testator without capacity, nonetheless, both knows and approves the contents of the will he, or she, purports to make.
As Deputy Master Bowles goes on to explain at paragraph 124, ordinarily where a Solicitor is involved in the execution of the Will, there will be a strong presumption that the Will represents the testator’s intentions at the moment of the execution of the Will. However, not so in the Biria case where considerable suspicions were raised about the Will making process in addition to those to do with capacity and undue influence. Moreover, the evidence of the independent expert (Dr Barker) was conclusive in establishing the deceased had no capacity at all to make the Will (he not managing to recall he had had many millions of dollars in the bank etc). At paragraph 129 then Deputy Master Bowles found there was no such presumption (of knowledge and approval) in this instance:
In the light of the foregoing, I am satisfied that this is, in no sense, the usual case, that the common sense considerations, which, in such a case give rise to the presumption of knowledge and approval, have no application to the facts of this case and that, in consequence, no such presumption arises. In this case, accepting, as I do, Doctor Barker’s evidence, the reading over of the will to Mr Biria by the notary, followed by the execution of the will, does not afford any evidence that, when executing the will, Mr Biria knew and approved its contents, nor, therefore, allay, in any way, the court’s suspicions in that regard.
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