An unexpected beneficiary

The recent case of Sharp v Hutchins [2015] EWHC 1240 (Ch) regarding the estate of the late Ronald Butcher, examines the requirement for knowledge and approval in a will, and also highlights the need for family and close relatives to be kept in the loop of any unusual decisions.

Mr Butcher executed a will in 2013, leaving his entire estate (around £470,000) to a local builder; Danny Sharp. The deceased and Mr Sharp had become friends some years before when Mr Sharp had assisted with clearing out the deceased's gutters, but not charged him for the work.

A challenge to this 2013 will was brought by
Mr Butcher's cousin, and by the son and daughter of a close friend, who together had referred to him as 'uncle Ron'. All three had been equal beneficiaries under an earlier will executed in 2011. They brought a challenge to the 2013 will on the grounds that it had been made without the deceased's full knowledge and approval.

Knowledge and approval

A testator must know and approve the contents of a will at the time of execution. If a testator has capacity at the time of making his will and there is proof of due execution, the court can strongly infer knowledge and approval. More is required where the circumstances relevant to the preparation and execution of the will excite the suspicion of the court (as was contended they did here).

Following this, the single-stage test (as set out by the court in Gill v Woodall [2010] EWCA Civ 1430) can be applied; the testator must understand: (a) what was in the will when he signed it; and (b) what its effect would be.

A distinction is drawn between knowledge and approval of the factual and legal content of a will.
The testator must know and approve the factual content of his will, but he may not understand its legal effect (Collins v Elstone (1893)).

In Sharp, the court found that because the deceased had capacity when he executed the 2013 will, the form of it was consistent with earlier wills, was short and simple, therefore the deceased would have been able
to understand it and its effect. It was held that the 2013 will had the deceased's knowledge and approval and,
Mr Sharp was entitled to his inheritance.

Lessons to be learned

The case demonstrates the need for frank conversations or, at the very least, a letter explaining why an estate has been left in a certain way. In this case, the beneficiaries of the 2011 will were well aware of the existence and contents of the 2011 will. The emergence of the 2013 will (of which they were unaware) combined with the fact they had never heard the deceased mention
Mr Sharp, lead to them raising questions over its validity.

Under English law a testator has complete freedom to leave their estate to whoever they wish, so the deceased was entitled to leave his estate to Mr Sharp. However regard should always be had to those who may expect to benefit, e.g. spouses, children and dependants.

When drafting a will with a client, however straightforward their will is, their family should be
told how the estate is being left. Sometimes a testator may not be prepared to have that conversation.

In these situations, I urge them to at least leave a letter (private and separate to the will) setting out their thought process.

For many it is the shock of being disinherited that can cause the biggest issue. I often find that I am representing a disappointed beneficiary who had expected, or had been lead to believe that they would inherit from an estate, only to be left disappointed.

While there are various other grounds on which a will can be challenged, sometimes the simple fact is that the testator knew what he was doing, and simply chose to leave his estate in that way. However taking the time to explain that choice to those affected might be difficult at the time, but could save a disappointed beneficiary the expense and stress of a legal battle.

Caroline Cook is a senior associate at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser