A will is only legally valid if the person who signed it (the testator) properly understood and approved its contents.
If doubts are raised over whether the testator truly understood the will, it is possible to contest it on the grounds of lack of knowledge and approval.
Lack of knowledge and approval looks at whether the testator understood the document's consequences rather than just whether they had the literacy or the ability to read its contents.
It is presumed that people understand and approve their wills when they sign on the dotted line, particularly if they read and sign in the presence of a solicitor, but contests can and do happen.
The will may be declared invalid when the court rules that the testator did not understand what they were signing. The estate is then dealt with under the rules of intestacy or under the terms of an earlier valid will if one exists.
Presumption of knowledge and approval
Knowledge and approval is usually presumed when a will has been executed correctly, and the testator has the necessary mental capacity.
There are, however, some exceptions where evidence is required to prove knowledge and approval, including when the testator is:
- Deaf and/or dumb
- Unable to write or is paralysed
- Blind or illiterate
Or if:
- The will is alleged to have been signed by another person for the deceased at their direction.
But the presumption of knowledge and approval isn't ironclad – and the situation can quickly change if any suspicious circumstances come to light.
The person contesting the will must first present evidence that raises sufficient doubt about the testator's understanding of the will.
If they succeed in this, the burden of proof shifts to those defending the will who must prove that the testator did know and approve of its contents. This dynamic makes lack of knowledge and approval a common ground for contesting a will, as it can be easier to raise suspicions than to prove other grounds like undue influence or fraud definitively.
Certain situations can trigger the court's suspicion and prompt this shift in the burden of proof. These might include cases where:
- The will was prepared by a beneficiary or someone closely connected to one
- There have been significant unexplained changes from previous wills
- There is evidence of the testator's vulnerability due to age, illness, or dependency
- There are unusual or unexpected provisions in the will
- Signs are present that the testator was isolated from family or friends during the will-making process
- Errors or spelling mistakes have been made.
The physical or mental conditions of the testator can play a significant role in these cases. A testator's ability to fully understand and approve a will might be questioned if they are blind, severely visually impaired, deaf or have difficulty communicating.
Illiteracy, language barriers or cognitive impairments can also cast doubt on the testator's comprehension. In such cases, extra care is needed to ensure and demonstrate that the testator truly understood the will, often requiring additional evidence of their knowledge and approval.
Barry v Butlin 1838
The landmark case in lack of knowledge and approval is Barry v Butlin (1838).
In this case, an elderly testator made a will in which a quarter of his estate was left to the lawyer who drafted the will for him. His only son was entirely disinherited.
Ultimately in Barry v Butlin, supporters of the will were able to prove that knowledge and approval was indeed present. The son was disinherited as all ties had been broken after the son absconded from a criminal trial.
Even so, the case held that when a will is prepared by someone who stands to benefit from it, this fact alone is sufficient to raise the court's suspicion. This suspicion must then be allayed by clear and satisfactory evidence that the testator knew and approved of the will's contents.
This principle has been refined over time, with modern cases like Gill v Woodall (2010) emphasising that the ultimate question is whether the testator understood what was in the will when they signed it and what its effect would be.
In that instance, Mrs Gill suffered from severe agoraphobia. Under pressure from her domineering husband, she left the house to finalise her will but suffered such panic and anxiety that there was no way she could understand what she was signing.
In another recent case, Hawes v Burgess (2013), the court found a will to be invalid due to a lack of knowledge and approval. In this case, one of the principal beneficiaries - the testator's daughter - was found to have orchestrated the making of a new will for her own benefit. She had encouraged the disinheritance of a sibling and remained present during the will preparation meeting, answering many of the questions on her mother's behalf. The mother was suffering from mild dementia.
Evidence to contest a will
Evidence is crucial when contesting a will on the grounds of lack of knowledge and approval. You must be able to show that the testator, for whatever reason, lacked comprehension at the point of putting pen to paper.
Medical records showing poor mental or physical health may be powerful, as could witness statements from people present when the will was signed. Evidence of the testator's poor literacy or language comprehension might also serve as evidence, along with previous wills that contradict the contested will.
Evidence to defend a will
If suspicions have been raised about a will, robust evidence will be required to prove that the testator fully understood what they were signing.
Solicitors should make detailed notes when preparing the will, including statements that prove the will was read and explained to the testator. The testator might have been asked to summarise the will's contents in their own words to confirm understanding.
The lack of knowledge and approval contest is sometimes used as an alternative to undue influence, which requires proof that a testator was pressured or coerced into changing their will. It is usually easier to evidence and prove a lack of knowledge and approval in comparison to undue influence.
Contesting a will on the grounds of lack of knowledge and approval can be possible, but it is a complex process that requires the expertise of specialist contentious probate lawyers.
