Knowledge and Approval
| Author | Nasreen Pearce |
| Pages | 63-73 |
Chapter 5
Knowledge and Approval
5.1 INTRODUCTION
A person propounding a will must show that, at the time the will was executed, the testator/testatrix knew, understood and approved the contents of the will. Due execution of a will, which on the face of it appears to be rational and fair, raises the presumption that the testator/testatrix had knowledge and approval.
Problems in this context usually arise where:
(a) there was a mistake in the preparation of the will;
(b) the testator/testatrix suffered from some disability, such as blindness, deafness or illiteracy;
(c) there is doubt about the testator/testatrix’s testamentary capacity (see Chapter 4);
(d) the circumstances surrounding the preparation and execution of the will are suspicious.
Since those who seek to challenge a will on the basis of lack of knowledge and approval are not always aware of the precise circumstances in which the will was made, it is not unusual for challenges made on this ground also to include allegations of undue influence, assertions that the testator/testatrix lacked testamentary capacity and claims that there was want of execution (see Pearce v Beverley [2013] EW Misc 10 (CC), referred to in Chapters 4 and 6). In cases where such allegations are not raised in the pleading as grounds for challenge, these grounds are often raised by implication, but in so doing the objectors expose themselves to costs being awarded against them if they fail to make out their case (see Re Stott [1980] 1 WLR 246, and rule 44.3 of the Civil Procedure Rules 1998 (SI 1998/3132) (CPR)).
64 A Practitioner’s Guide to Probate Disputes
5.2 MISTAKE
A mistake in the drafting of the will may give rise to the belief that the testator/testatrix did not know of the error and, therefore, did not approve of the provisions. Drafting errors may arise as a result of the testator’s/testatrix’s own inadvertence, an error by the draftsman or the deliberate act of another. Drafting errors are likely to occur with the use of information technology and especially where template precedents are cut and pasted. In some instances, the errors may be rectified by the court under powers developed at common law and section 20 of the Administration of Justice Act 1982. This subject is covered more fully in Chapter 9.
Where the mistake relates to the whole of the will, probate is generally refused, as it would be difficult to satisfy the court that the testator/testatrix knew and approved the contents of the will. An error in the execution of the will is an example where the court may rule that the testator did not know, understand and approve the contents of the will. In The Goods of Hunt (1875) 3 P & D 250, the testatrix, who lived with her sister, prepared two wills. By mistake, the testatrix executed the will prepared for her sister. The wills were drawn in similar terms but the court refused probate on the ground that the testatrix did not know and approve ‘any part of the contents of the will she executed as she did not know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it’. Re Meyer [1908] P 353, was a similar case where sisters signed each other’s wills by mistake. The will was challenged on two grounds. The first that it ‘must appear that the testator intended by his signature to give effect to the will’. The court agreed and held that the testatrix had not intended to sign the document she signed but a different one. Secondly, as in The Goods of Hunt, it was argued that knowledge and approval of the contents of the will were lacking.
In Marley v Rawlings and Another [2011] EWHC 161 (Ch), a couple wished to make mirror wills each leaving everything to the other, and the survivor leaving everything to Mr Marley, who was their carer and whom they both treated as their son. However, in error they executed the wrong wills. Neither of the two witnesses, who attested the will, noticed the error. The error was also not picked up when the wife died and the property passed to the husband by survivorship. On the husband’s death, the couple’s two sons on wishing to challenge the will noticed the error. They challenged the will on the ground that the will was not signed by the testator and, therefore, did not comply with section 9 of the Wills Act 1837. Mr Marley sought rectification of the will under the Administration of Justice Act 1982. At first instance, Proudman J held that the will was invalid. On appeal ([2012] EWCA Civ 61), the Court of Appeal unanimously dismissed the appeal. On further appeal, the Supreme Court ruled (see Marley v Rawlings and Another
[2014] UKSC 2) that, having regard to the circumstances in which the will was executed, there was clear evidence of the testator’s intentions and from which knowledge and approval could be identified. The error could be considered as a ‘clerical error’ and open to rectification (see para 3.5 and Chapter 9).
5.3 DISABILITY
Where the testator/testatrix suffered from a disability which may have made it difficult for him/her to understand and approve the contents of his/her will, the court will require convincing evidence that the will sets out the testator’s/ testatrix’s intentions. The evidence includes cases where instructions were taken from a testator/testatrix who was hard of hearing, or deaf and dumb, where the person was blind or illiterate, where the testator/testatrix suffered from a speech defect and was unable to read, write or speak, or suffered from some other disability which adversely affected his/her ability to comprehend and understand the contents of the will or that the document was his/her will which would operate on his/her death. Where a will has been read over to a testator/testatrix or the contents have been brought to his/her knowledge in some other way, it will be sufficient evidence to support knowledge and approval unless the circumstances and the manner in which this was done brings the matter into question and rebuts the presumption (see Garnett-Botfield v Garnett-Botfield [1901] P 335). In D’Eye v Avery [2001] WTLR 227, the testator suffered a severe stroke in 1986 and...
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