Lack of Knowledge and Approval

Challenges to the validity of Wills on the grounds of lack of knowledge and approval

It is accepted law that the maker of a Will must know and approve of the contents of any Will executed. Whilst a testator does not need to understand the exact legal terminology used in detail, they must understand the fundamental terms of their Will and how their estate will be distributed.

The key question is did the testator actually know what their Will said and approve it. This is different to the question of testamentary capacity which assesses whether they were capable of doing so.

Knowledge and approval will have much to do with the circumstances under which the Will was executed and investigation as to the circumstances of execution is needed.  Examples of cases of individuals that may not have known or approved the content of a Will include where it has been prepared under the instruction of somebody other than the testator and that he/she has simply signed it without really knowing what it contained. 

Other examples cover instances where a physical issues might prevent the testator from properly understanding the content of the Will, such as poor eye sight, hearing problems or illiteracy or where there are language barriers and a Will has been prepared in a language that is not the Deceased’s first language without proper translation to enable them to fully understand its contents.

Knowledge and approval will be automatically presumed where there is good evidence that the testator had sufficient mental capacity, and the Will has been executed correctly.   However, if a Will is prepared under circumstances that “excite the suspicion of the court” the burden of proof will shift to the persons seeking to rely on the Will (usually the Executors) to demonstrate that the testator knew and approved of the contents and the presumption is disapplied.

Circumstances which may give rise to suspicion include:

• When a Will is homemade and no professional legal advice has been obtained;
• Where a person who benefits under the Will has been involved in making the Will (i.e. arranged/attended appointments with the testator/ prepared the Will for the testator).
• Where there are concerns that the testator had physical impairments or lacked testamentary capacity.
• When the witnesses of the Will are not known to the Deceased.

In practice there is often a degree of overlap between the grounds of lack of knowledge and approval, lack of mental capacity, and undue influence.  To assess the lack of knowledge and approval ground in any particular case, it is usual to go through the same steps as set out in our Larke v Nugus requests and attesting witnesses page and investigating a claim based on an allegation of lack of testamentary capacity.

The court will consider all the evidence available in determining the question of whether the testator lacked knowledge and approval of a disputed Will such as any notes held from any meetings with them and the evidence of any witnesses present.