The Late Freda Burgess Will Validity Dispute

This week ‘The Times’ reported on a Will validity dispute recently heard in the High Court where two sisters are said to allege that their late mother, Freda Burgess, did not have knowledge and approval of the contents of a Will executed in January 2013 bequeathing her circa £1.5 million estate equally between her three children. Under an earlier Will, the deceased had left the two sisters a 40 per cent share each with the remaining 20 per cent to her son. The sisters assert that their brother should be entitled to less of their late mother’s estate because “he is richer than they are” and that prior to the execution of the January 2013 he had taken control of their mother’s finances. The article also makes reference to a fall nine days prior to the deceased executing her Will which is said to have left her vulnerable.

A testator must have knowledge and approval of the contents of a Will in order for it to be valid. Theobald on Wills, 18th Edition summarises this requirement as follows:

“A testator must know and approve the contents of his Will. This is because a Will must be the result of the testator’s own intelligence and volition, though its contest need not originate from the testator provided he understands and approves them. But a Will is invalid if its contents originate from another person and the testator executes it in ignorance of its contents.”

There is a general presumption that a testator knows and approves the contents of a validity executed Will but if the circumstances surrounding the making of the Will arouse suspicion then it is the responsibility of the person saying that the Will is valid to prove that it is.

What amounts to “suspicious” circumstances will be different in every case but might include the Will having spelling mistakes or using language which the testator would not normally have used, the Will having radical changes from a previous Will with no explanation, the testator having had capacity issues around the time the Will was made, the Will being homemade and no professional advice having been sought, the testator not having had a close relationship with a beneficiary or a beneficiary having been instrumental in the preparation of a Will.

Prior to the case of Gill v Woodall [2010], the general approach to determining knowledge and approval was a two-stage test: (i) the challenger of the Will was to raise suspicious circumstances; and (ii) if the burden of proof was passed by the challenger it was for the propounder of the Will to discharge the burden of showing  that the testator did, in fact, know and approve of the Will.

However, in Gill, the Court of Appeal questioned this approach favouring a one stage test as follows:

“the correct approach when considering knowledge and approval [is] to ask a single question, namely had the testator understood: (a) what was in the Will when she signed it; and (b) what its effect would be”.

In circumstances whereby the Will has been drafted by a solicitor, the Court of Appeal made clear that it would be extremely difficult to argue that a testator did not understand and approve the contents.

“As a matter of common sense and authority, the fact that a Will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the Will”.

Want of knowledge and approval claims can sometimes be seen by claimants as an ‘easier’ route to challenging a Will than on other grounds. Certainly, our experience is that these types of claims are rising, and indeed where there are concerns with respect the validity of a Will more often than not will advise want of knowledge should be pleaded, but that it is by no means an easy route for disgruntled family members looking to challenge the validity of a Will. It should be remembered that the starting point is that the Will was validly executed. Each case is fact specific and any “suspicious” circumstances will be considered in this context.

We await the decision in the Burgess case with interest.

 

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