Lack of knowledge and approval

The Testator should know and approve of the contents of the will, in other words have complete understanding of the will.  This is presumed unless put into doubt. The approach is set out in the leading case of Fuller v. Strum [2002] which outlines that where the Deceased’s knowledge and approval are put in issue by a person seeking to challenge the will, the Court must be satisfied on the balance of probabilities, that the Deceased did know and approve its contents.

Where there are “suspicious circumstances” the Court will require the person preparing the will to prove that the will represents the wishes of the Deceased.

The following are examples of suspicious circumstances:-

  • Where a beneficiary is involved and instrumental in the will preparation process.
  • When a will is homemade and no professional advice is sought.
  • When a will represents a radical departure from the terms in the earlier will.
  • The will contains spelling errors or uses language unusual for the Deceased.
  • The reasons for the will are mistaken.
  • The will contains untrue statements or uncharacteristic features.
  • The relationship between the Testator and Beneficiary was not close.
  • The witnesses are not sufficiently independent.
  • There was other unusual behaviour by the Deceased at the time the will was made.
  • There is evidence generally of the testator’s mind failing but they retained testamentary capacity.
  • If the Deceased was illiterate, English was not their first language or they were hard of sight or hearing.

In cases where a will has been drafted by a solicitor and has been read over to the Deceased it will often be difficult to prove that they lacked knowledge and approval.