Wills and Probate in UK Law

Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries.

It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two testators. However, the argument resting on the alleged insufficiency or uncertainty of the terms of this contract is misconceived. The case for the existence of mutual wills does not involve making a contractual claim for specific performance or other relief.

Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine.

It is then the duty of the Court by the exercise of its judicial knowledge and experience in the relevant matter, innate commonsense and desire to make sense of the settlor's or parties' expressed intentions, however obscure and ambiguous the language that may have been used, to give a reasonable meaning to that language if it can do so without doing complete violence to it.

By his signature, the testator is not only executing the document as a will with immediate effect but also (at least in a broad sense, subject to adjustment arising from issues of want of knowledge and approval and matters within the scope of section 20) confirming that the document represents his testamentary intentions. This dual function is consistent with the historical roots of the present provision.

What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased.

In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents.