A guide to challenging a will on the grounds of want of knowledge and approval
For a Will to be valid the testator (the person who made the Will) must have knowledge of the terms of the Will and approve its content. If they didn’t have the required knowledge and approval then the Will can be challenged and declared invalid.
Challenging a Will on the grounds of want of knowledge and approval often meets with more success than other types of challenge (such as contesting a Will on the grounds of undue influence) and is therefore a common allegation in disputed Will cases. So what does it actually involve?
When knowledge and approval is presumed
If a Will has been correctly executed then it is presumed that the testator had the required knowledge and approval of its terms.
There are some limited exceptions to this presumption, such as where the testator has a disability affecting their speech, hearing, eyesight, or their ability to write. In these instances evidence must be provided to show that the testator did have the necessary knowledge and approval.
The presumption of knowledge and approval will also not apply if there are suspicious circumstances surrounding the execution of the Will.
Where suspicions arise the onus is on the party who believes the Will is valid to present evidence to counter those suspicions and demonstrate that the testator did have the requisite knowledge and approval. To do this they must show that the testator understood the terms of the Will and what effect those terms would have.
Homemade DIY Wills are particularly vulnerable to such a challenge. When a Will is professionally drafted the solicitor will generally go through it with the testator to make sure they fully understand its effect. They also often oversee the witnessing of the Will. But when no independent professional is involved suspicion can fester, and it isn’t always easy to dispel. Misgivings can be amplified when language is used that would not be associated with the testator or the Will contains things that are not true or out of character. Questions can also be raised when the choice of witnesses seems unusual.
Even when a Will is prepared by a solicitor suspicions can still arise. Was the solicitor previously known to the testator for instance? When a testator has made previous Wills with another solicitor over a period of time, but then changes solicitor for no apparent reason, it is easy to see how mistrust can arise. This is especially so if the legacies are significantly different to previous Wills, the principle beneficiary was not close to the testator or the overall effect of the Will seems irrational.
There can sometimes be an overlap between challenging a will on the grounds of lack of knowledge and approval, and a challenge made on the grounds of undue influence. Has the main beneficiary been closely involved in the making of the Will, for instance? Is it someone in a position of trust? Do they have a dominating personality? Is it possible that they have poisoned the mind of the testator in relation to other potential beneficiaries?
Consideration must also be given to the conduct and state of mind of the testator themselves. Had they been behaving irrationally or acting out of character? Was their health impaired or were there any signs of a deterioration in their mental faculties, short of losing testamentary capacity altogether?
Points to consider when challenging a will on the grounds of want of knowledge and approval
If you are thinking about challenging a will on the grounds of want of knowledge and approval it is advisable to collect as much evidence as possible to support your case.
Ideally you will be able to rely upon a number of factors that cast real doubt on whether the testator had knowledge of the terms of the Will and approved its contents.
Remember, the key witness, the testator, will not be available to give evidence. This means that these cases are often shrouded in conjecture and speculation, making a definitive assessment difficult where the evidence is suggestive rather than conclusive.
It is no doubt a result of this uncertainty that many challenges based on lack of knowledge and approval result in out of court settlements, often after a mediation.
We are highly experienced in dealing with knowledge and approval cases and represent clients nationwide.
If you require assistance in gathering the necessary evidence to support a challenge then we can work to a set budget so that you retain control over the costs you incur.
When sufficient evidence is available we will be happy to consider proceeding forward with the claim on a No Win, No Fee basis.
Call our free helpline
For further guidance on challenging a will on the grounds of want of knowledge and approval and details of funding options call our free helpline on 0333 888 0404. Alternatively you can email us at [email protected]