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CONTESTING A WILL WITH WILLCLAIM.COM NO WIN NO FEE SPECIALISTS – ANOTHER KNOWLEDGE AND APPROVAL CASE

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the unusual ground for contesting the legal validity of a Will in Will dispute and Will contest claims called knowledge and approval

What is the requirement of knowledge and approval in Will contest and Will dispute claims?

The requirement is simply this; the testator (the person making the Will) must know and approve its contents. In other words he must understand what the Will says and does. We previously raised this in a blog earlier this year in relation to the case called Coles v Reynolds 2020 EWHC 2151 (Ch):

https://www.willclaim.com/how-to-contest-a-will-lessons-in-challenging-a-will-part-1/

In that decision, a professionally made Will (through a firm of Solicitors) was upheld, notwithstanding there was no proper defence to the claim against its legal validity.

The case of Coles highlighted that Wills that are professionally prepared are very difficult to contest successfully. Moreover (and this is the reason knowledge and approval on its own isn’t usually maintained as a claim) knowledge and approval is usually inferred from the fact that the testator had the requisite capacity to make the Will, at the time it was made. This simple tenet was confirmed by His Honour Judge Keyser QC the recent decision of Mundil-Williams v Williams 2021 EWHC 586 (Ch)

https://www.bailii.org/ew/cases/EWHC/Ch/2021/586.html

“In the ordinary case, knowledge and approval will be inferred from the facts that the testator had testamentary capacity and that the will was duly executed”

Given this knowledge and approval is usually lost or subsumed into the general issues (if applicable) concerning testamentary capacity. It isn’t usually raised as an issue on its own.

What key issues does the court consider in relation to the requirement for knowledge and approval of the Will contents in Will dispute and Will contest claims?

This simple answer is that the court will look at facts which will raise a suspicion in its mind. Normally this would include the Will being prepared by an amateur (non- Solicitor/lawyer/Will writer). It follows that ordinarily a Will prepared by a Solicitor is not usually questioned. In Mundil-Williams Judge Keyser QC quoted with the approval the following:

“In Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, commented as follows in the circumstances of the case before the court:

“12. As for want of knowledge and approval of the contents of the 2007 Will, the scope of the inquiry indicated by a long line of authorities gives rise to other questions distinct from lack of mental capacity to make the will: Wintle v Nye [1959] 1 WLR 284; Fuller v Strum [2001] 1 WLR 1097; Gill v. Woodall [2011] WTLR 251. The relevant questions to ask in this case are-

i) Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? The judge said ‘Yes.’

ii) Has scrutiny of those circumstances by the court dispelled those suspicions? The judge said ‘No.’

13. In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed.

14. I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.”

He then went on to describe that in the present case there was no question as to the testator’s testamentary capacity and that the Will was prepared by an experienced firm of Solicitors following the receipt of instructions and that it was read over by him before it was signed. In these circumstances then the eventual conclusion that the testator did not know and approve the contents of his Will was a surprising conclusion. The reason lies in the failure of those Solicitors to take sufficient care to follow and/or question the original instructions they received from the testator, given he didn’t appreciate that the farm (the main estate asset) was not part of the residuary estate. We have copied and pasted the critical part of his Judgment below:

“However, I have reached the clear conclusion that the testator did not have knowledge and approval of the contents of the 2014 Will and that he seriously misunderstood its provisions, in that he did not appreciate that the Farm was not part of the residuary estate and would go entirely to Richard. Thus the 2014 Will did not represent his testamentary intentions. Several factors indicate, and together compel, this conclusion.

52. First, the 2014 Will does not accord with the instructions that the testator gave to Ms Gillard in May 2014. Of course, the testator’s thoughts might have developed in the following month; he might have decided that a 62.5% share of the Farm did not sufficiently reward Richard. However, one might be cautious before drawing that conclusion. The deceased had not changed his will for nearly 24 years. He had clearly given serious thought to his instructions to Ms Gillard; though it is right to observe that his manuscript note did not specify the shares to be left to his sons, and he remained undecided about the amount to be left to Susan. Further, there is no evidence that anything occurred between 19 May and 18 June 2014 to cause the testator to change his mind in any significant way. To deprive Timothy, Thomas and Ifor of nearly all the benefit they would receive was on any view a very significant alteration”

This Will contest or Will dispute claim highlights that Solicitors, Will-writers and other professionals taking instructions in relation to a relatively complex Will/estate, must take particular care in relation to the instructions that they receive and ensure those instructions are fully and contemporaneously documented. If they fail to do this it is possible the Will could be completely overturned.

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.

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

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