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Jean-Yves Gilg

Editor, Solicitors Journal

Jean-Yves Gilg

Editor, Solicitors Journal

Knowledge is power

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Knowledge is power

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Are clients who lack capacity becoming increasingly more vulnerable when it comes to estate planning? Matthew Evans asks

It is not often that cases of knowledge and approval of wills come before the courts. But a few have been heard this year already.

In Hawes v Burgess [2013] EWCA Civ 74, the Court of Appeal upheld a first instance decision against the will's validity. Many commentators suggested that, in making a finding of fact that daughter Julia had been the 'controlling force', the court was essentially saying that the deceased had been the subject of 'undue influence'; traditionally a more difficult ground on which to challenge a will.

Following that decision, in March, a will was declared invalid on the basis that the testator lacked knowledge and approval of the will in an unreported case. In Tociapski v Tociapski [2013], the testator made wills in 2007 and 2009. The former will divided the testator's (F) estate equally between his two children, and the latter stated his entire estate should go to one child only. The 'disinherited' child (C) therefore brought a claim to set aside the 2009 will on the basis that the testator's capacity was so impaired that he was unable to know of and approve its content.

C relied on expert medical evidence, which stated that, although it could not be concluded the testator lacked testamentary capacity, the testator's capacity "was impaired on the basis of marked generalised atrophic and ischaemic changes, and that those changes had impacted adversely on F's capacity to know and approve the contents of the will".

Affirmative proof

In another similar case this year (Turner v Phythian & Anor [2013] EWHC 499), the will was drafted by one of the principal beneficiaries, the only other beneficiary under the will being the will drafter's wife. In such circumstances, where a beneficiary has prepared the will, the court requires affirmative proof that the testator knows of and approves its content.

Here, it was noted that there was no evidence, other than from the will drafter, that the testator had ever read the will, or had the will read over to her. The will drafter also acknowledged that the testator did not read the will immediately before signing it, nor that there was any explanation or discussion about its content in the presence of the witnesses.

Cogent evidence

The court further noted that all discussions between the will drafter and testator took place when only the two of them were present, that the will drafter took no substantial notes and that the testator received no independent legal advice on the contents of her will. It was ruled that the will drafter had provided "no cogent evidence that the deceased had understood what she was doing when she signed ?the will".

In this case, the court also held that the testator lacked testamentary capacity, and confirmed the principle propounded in Key v Key [2010] 1 WLR 2020, that "a conclusion that a testator lacks testamentary capacity necessarily compels a ?conclusion that he did not know and approve ?the contents of his will".

It's apparent from these three examples, and ?many commentators agree, that where there ?are concerns regarding a will's validity, it is ?often advisable to plead lack of knowledge and approval as well.

Even if the courts are not willing to make a finding that a testator lacked testamentary capacity ?or was unduly influenced, they may find more readily that a will is invalid for this reason.

Matthew Evans is a partner at Hugh James

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