Contesting wills on grounds of lack of knowledge and approval

Knowledge and approval

For a Will to be valid the maker of the Will must have understood and approved its contents. Lawyers call this requirement ‘knowledge and approval’.

Presumption of knowledge and approval

Where a Will is properly executed there is a legal presumption that the maker of the Will had knowledge of the contents of the Will and approved those contents.

Exceptions to the presumption of knowledge and approval

There are exceptions to this presumption. 

The exceptions are: 

  • Testator is deaf and/or dumb;
  • The testator cannot speak, write, or is paralysed;
  • The testator is blind or illiterate;
  • The Will is alleged to have been signed by another person at the testator’s direction.

The burden of proof where the presumption doesn’t apply

Where these exceptions apply evidence is required to prove the testator had ‘knowledge and approval’ of the Will. 

The burden of proof is on the person trying to establish the validity of the Will in these circumstances. It is their responsibility to produce evidence that the testator had ‘knowledge and approval’. 

Suspicion of lack of knowledge and approval

In addition to these exceptions, if there is a suspicion that the maker of the Will lacked knowledge and approval then the validity of the Will can be challenged on that basis.

Proving lack of knowledge and approval.

It is generally more difficult to prove lack of knowledge and approval where a solicitor was involved in preparing the Will. When a Will is signed the solicitor will usually read through the Will with the testator to ensure they understand it and are happy with the contents. 

However this isn’t always the case. See for instance Burgess v Hawes [2013]. 

If only part of the Will is read to the testator, it is possible for a lack of knowledge and approval to apply to the parts which were not read and understood.

It is important to note that any claim must have a realistic rather than fanciful prospect of success, so that a real doubt emerges. If that doubt is present the burden of proving the testator had knowledge and approval falls to those seeking to confirm the validity of the Will.