thumbs up for knowledge and approval when executing a will

The importance of knowledge and approval

A recent case has highlighted the importance of making sure that a Testator knows that they are executing a will, and understands and approves the contents of that will

One of the bases for challenging a will is that the person who made the will did not have knowledge and approval of the contents of the will. In the recent case of Poole v Everall the courts had to determine this in a complicated case involving a testator with a history of mental health problems and cannabis abuse

The Facts

David Poole had a history of cannabis abuse and mental health issues arising from a motorbike accident in 1985. He had been awarded a substantial settlement to assist him with his needs, and was primarily cared for by Mark Everall under a type of adult fostering scheme run by the council. His financial affairs were handled by a solicitor, latterly as a Deputy appointed under the Mental Capacity Act.

A will was drawn up in February 2012 under which the beneficiaries were David’s brothers, and a number of charities. However, he then drew up a different will in December 2012 leaving 95% of his estate to Mark Everall, his carer, and the remainder to his girlfriend. The brothers challenged on the will on the following bases – the will had not been properly executed, David did not have mental capacity to make the will, and that he did not ‘have knowledge and approval’ – primarily, he did not understand and approve the contents of the will. There was also a claim that Mark Everall had exercised undue influence and fraudulent calumny over David. After hearing detailed evidence about the complex interactions between David, his Deputy, and the carer, Mr Everall, the judge decided that the December will should be overturned, and the February 2012 will, which benefited the brothers, should stand.

  • The judge was satisfied that David knew he was executing a will in December 2012 – the real issues was whether he understood the contents of that will – and that the new will did not leave anything to his brothers.
  • As Mark Everall, the carer who was the executor and main beneficiary under the December will, was seeking to rely on it he had to prove its validity.
  • The facts of the case, coupled with David’s vulnerability and suggestibility and the ‘self-serving’ nature of Mr Everall’s evidence meant that the judge was unable to agree that David knew and approved the contents of the will.

Full understanding – knowledge and approval – is vital to avoid a challenge

In his judgment, the judge highlighted that fact that had the December will been executed before an independent solicitor who had read the will out to David before he signed it, there would have been a presumption that he did have full knowledge of the contents of the will. It’s clear that in this case, no presumption could be found. At the time the will was executed, Mr Everall made a recording of a conversation with David in an attempt to counteract any future challenge. However, although this referred to the contents of a ‘letter of wishes’ it did not deal with the will itself.

The key lesson is how important it is to make sure that the Testator understands the contents of his will and approves them at the time he or she executes his will. It’s clear that the circumstances of the case were sufficient to arouse suspicion. The December will represented a complete change from previous wills and the wishes of David that had been recorded in the run up to the preparation of the earlier will.

If you are concerned about the circumstances surrounding a will, we can offer a free claim assessment to talk through your options.