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DISPUTING A WILL – LACK OF KNOWLEDGE AND APPROVAL; IS IT UNDUE INFLUENCE IN DISGUISE

In two recent decisions, where it seems there may have been an argument the deceased was unduly influenced but with insufficient evidence to run that or more importantly a claim that he or she lacked legal testamentary capacity, the courts seem to have been keen to impute instead the deceased did not know and approve the Will contents.

The cases in question are Topciapski (2013) Ch 20 March 2013 and Hawes v Burgess (2013) EWCA civ 74 (a Judgment of the Court of Appeal). 

In Hawes, Mummery J sitting in an appellant position, declined to decide whether a Judge at first instance had erred in law in relation to testamentary capacity and instead pronounced against the Will on the basis of want of knowledge and approval. The following points were made:

  1. The benefiting child was the controlling force behind the will, organising the provision of instructions;
  2. The Solicitor who prepared the Will had no knowledge of the deceased and had not met her before;
  3. He did not carry out a capacity assessment;
  4. Incorrect information and the wrong impression (of another potential beneficiary) had been given to the Solicitor;
  5. The deceased had failing health, was frail with age, had dizzy spells, increased vagueness, memory impairment and problems in recognising      people – dementia of moderate severity;
  6. The excluded child continued to help the deceased on a regular basis;
  7. There was a rift between the benefitting and excluded children.

In other words there was sufficient of concern for the Court to ignore insufficient evidence to find against the Will on the basis of lack of legal testamentary capacity and the fact that a Solicitor had been involved in the drafting and execution of the Will and had taken a detailed note. The relevant questions for the Court to answer are:

  1. Do the circumstances of the Will rouse the suspicions of the Court as to whether the contents represent the true wishes and intentions of the deceased as known to and approved by him?
  2. Has the scrutiny of those circumstances by the Court dispelled those suspicions?

As ever this broad description creates risks for all parties. Plainly there is a broad range of discretion here. There has to be an argument that most claims could fall foul of this but clearly a particular set of facts was at work here which persuaded the Court to find against the Will. One suspects that most claims with modest evidence may not be as lucky.

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