One of the grounds upon which a Will may be challenged, is where the testator did not know or approve of its contents. Those seeking to attack the Will may seek to bring such a challenge, if they are concerned that the the deceased did not know what they were signing or did not understand the full legal implications of the Will.
The general rule is that where the testator had the requisite testamentary capacity to make a Will and that Will was correctly signed and witnessed, there is a presumption that the testator knew and approved of its contents. However, if there are suspicious circumstances surrounding the drafting and signing of the Will, it is necessary for those arguing for the validity of the Will, to put forward proof of the testator’s knowledge and approval.
The Court has the power to set aside the deceased’s Will if it was signed without the testator’s knowledge and approval. In making this decision the Court will consider whether the deceased knew what was in the Will and understood what the effect of the Will would be. If the Will is declared to be invalid, the deceased’s estate would then be distributed in accordance with their previous Will, or under the intestacy rules (where a previous Will does not exist).
The following are examples of circumstances which could be considered suspicious and therefore raise questions as to the testator’s knowledge and approval:
- The Will was homemade and there is no evidence that professional advice was sought.
- The Will includes spelling errors or uses language that the testator would not have used and is unlikely to have understood.
- The Will includes statements that are untrue or contains elements that are uncharacteristic of the testator.
- The Will includes radical changes to previous dispositions without rational explanation. Especially if the person in whose favour the changes are made had great influence or authority over the deceased.
- The dispositions of the Will in general cannot be rationally explained.
- A beneficiary played a major role in the preparation of the Will. For example, giving instructions on behalf of the testator or drafting the Will.
- A beneficiary acted in a way which is suspicious, dishonest or contrary to the testator’s interests.
- The relationship between the testator and one of the beneficiaries was not close.
- Those witnessing the signing of the Will were not appropriately independent.
- The testator’s behaviour around the time that the Will was drafted was considered unusual.
- The testator was lacking in testamentary capacity at the time of the drafting of the Will, or there is general evidence that the testator’s mind was failing.
- The testator was feeble as a result of poor health.
- The Will’s contents were explained or read to the testator, rather than them reading it for themselves. This applies particularly to complex Wills with multiple potential beneficiaries.
- The testator had poor literacy skills or did not speak English as their first language.
If you believe that a Will is invalid due to want of knowledge and approval, please contact Hewitsons
or call 0330 311 0885 today, for a free initial consultation with one of our solicitors who are experienced in this area.