For a will to be valid, in addition to a personal making the will having capacity, they must have also known and approved its contents. If the will was made in suspicious circumstances, rather than arguing undue influence, which is hard to prove, those individuals disappointed by the terms of the will may allege that the person making the will did not know what was in the will or approve its contents.
What is the test of knowledge and approval?
The test for knowledge and approval is fairly straightforward:
- did the person making the will understand:
- what was in the will when they signed it
- what its effect would be
The answer to this question should be considered in the light of all the available evidence.
Where the formalities of making a will have been followed (the will has been signed and witnessed properly) and where the individual has capacity, then it is presumed that the individual did know and approve the will’s contents
If a person wants to challenge the will on the grounds of lack of knowledge and approval, then the burden of showing sufficient circumstances that “excite the suspicions” of the court shifts to them
What would amount to “suspicious circumstances”?
Examples of such suspicious circumstances that excite the court and require further investigation are:
- where the will was prepared by someone who takes a substantial benefit from it
- if the will departs significantly from other longstanding wishes in previous wills
- if the will was homemade and the person making the will didn’t have professional legal advice
- if the will has a number of obvious errors, spelling mistakes and untrue statements about other beneficiaries
- the witnesses to the will were not independent and related to the beneficiaries
- where the person who made the will is elderly and the will is in favour of people not very close to them or in a position of power over that person e.g. carers
- where the person’s wishes were given in response to leading questions
- if the will is complex and there is no evidence that the will was read or explained to the person making it
Each case will turn on its own facts, though in situations where the will was prepared by a solicitor then it will be very difficult to bring a successful challenge on the ground that the individual did not know or approve it’s contents
We have a great deal of experience in dealing with will challenges brought on this basis both acting for concerned family members and also defending such claims. If you would like to discuss further, then get in touch.