Challenging a Will: Knowledge & approval of a Will
When writing a Will, a person must know and approve the contents of their Will. The burden of proving that a testator has known and approved the contents falls to the person seeking to prove the Will. This burden is normally discharged by proving that the testator had capacity and executed the Will. In addition, if the Will has been signed by the testator, there is a presumption that they knew and approved the contents of it. This presumption does not apply, however, if the testator is deaf and dumb or blind or does not personally sign the will (for more information on valid execution of a Will, please see my blog: Challenging a Will: Valid Execution).
However, there are circumstances where further investigation may be required. For example, if the party preparing the Will takes the benefit of the Will, the court may regard the circumstances as suspicious, or if the Will does not accord with the testator’s instructions, this may demonstrate that they could not have known and approved the contents of signed Will.
There are circumstances, however, when it is not always necessarily for a person to know and approve the contents of their Will when they signed it. Case law has held that, as long as the testator understood and knew and approved the terms when they gave instructions for the Will, the Will is prepared in accordance with those instructions and at the time the Will is executed, the testator remembers giving instructions and believes that the Will has been prepared in accordance with those instructions (even if they do not recall the precise terms), the Will is valid.
It is therefore important to ensure that a testator knows and approves the contents of their Will. One of the ways of demonstrating this is by using a solicitor to prepare the Will and for them to be present when it is signed as the solicitor should discuss the Will with the testator and ensure that they know what they are signing.
If it can be shown that the testator did not know and approve the contents of their last Will, the Will shall be declared invalid and their estate will be administered according to any previous Wills or under the laws of intestacy (when there is no Will in place).
If you wish to discuss any of the issues arising from this blog, please feel free to contact me at victoria.riddleston@ellisjones.co.uk or 01202 057768
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