NOTE: This article was published in March 2013 and reflects the law as it stands on the date of publication and not at any later date.

Want of knowledge and approval

The test

(1)  The testator must know and approve of the contents of the Will, in in the sense he knows what is in the Will, and accepts that the Will sets out his testamentary intentions (Gill v Woodall [2010] EWCA Civ 1430 para. 71).

(2)  Proof of testamentary capacity and of due execution gives rise to a presumption of knowledge and approval.

(3)  However, where there are “suspicious circumstances” that the testator may not have known or approved of the Will, the burden will fall upon those who seek to uphold the Will to satisfy the court, on the balance of probabilities, that the testator knew and approved of the Will.

 

Solicitors

The classic way of rebutting a claim, based on want of knowledge and approval, is to establish that the Will was read out and explained to the testator by a qualified solicitor. In this way the contents of the Will are brought home to the testator.

The Court of Appeal emphasised in Gill v Woodall [2010] EWCA Civ 1430 that there was a grave and strong presumption that, where a Will has been read over to a testatrix, there was knowledge and approval. The court should be very cautious about accepting a contention that a Will, executed in such circumstances, is open to challenge. This would risk undermining a fundamental principle of English law that people should in general be free to leave their property as they choose.

 

Successful claims

However, there have been cases where a claim has succeeded, even though the Will was read out and explained by a solicitor.

 

Buckenham v Dickinson[2000] WTLR 1083.

 

The testator was 93, nearly blind, and very deaf, when the Will was executed in the presence of a solicitor. The Will was read out aloud by a secretary. The testator was periodically asked whether he agreed, but made no comment other than some rather inarticulate affirmatives. There was nothing to indicate any positive input on the part of the testator. The Will was set aside.

 

LESSON: The solicitor needs to be in clear communication with the testator using non-leading questions so as to be sure, as a result of a rational two-way discussion in which the testator has a positive input, that the testator genuinely understands and approves the contents of the Will. If in doubt, a doctor should be called to certify capacity and actual knowledge and understanding.

 

Gill v Woodall [2010] EWCA Civ 1430.

 

Mrs Gill made a Will leaving her property to Mr Gill, if he survived her, and, in default of survivorship, to the RSPCA. No provision was made for her daughter, with whom Mrs Gill was on good terms. Instead, Mrs Gill left the whole of her estate to a single charity (the RSPCA) with which she had no apparent previous connection, and which she had described as “a waste of time” and “a bunch of townies”.

The Will was set aside for want of knowledge and approval, even though it was read through by a solicitor. Mrs Gill suffered from a severe anxiety disorder, agoraphobia (of which the solicitor was unaware) which rendered her fearful when she left home, and when in contact with strangers, and which was likely to have inhibited her ability to concentrate and absorb information. The Judge accepted expert evidence that Mrs Gill would have experienced severe anxiety (at least 8 on a scale of 0 to 10) which would have impacted on her ability to concentrate, take in and commit to memory what was said to her by the solicitor. She would have done whatever she could to bring the meeting with the solicitor to a conclusion so that she could return home.

The solicitor had not read out the Will in manageable chunks. He had read it out in one go. Mrs Gill probably understood that she was giving her estate to Mr Gill, if he survived her (the first bit), but not that she was giving her estate to the RSPCA, if she was not survived by Mr Gill (the second bit).

 

LESSON: Read out the Will in manageable chunks. Seek feedback in respect of each chunk, and make a proper note. Ask whether the testator is suffering from any condition, or taking any medication, that might affect concentration and comprehension.

 

Key v Key [2010] EWHC 408 (Ch).

 

Mr Key, an 89 year old farmer made a Will, 10 days after the unexpected death of his wife of 65 years, providing for the bulk of his estate to be divided between his two daughters. In stark contrast, under his previous Will, his estate had been left, subject to his wife’s life interest, equally between his two sons. A solicitor (Mr Cadge) had, 2 days before, attended upon Mr Key at his home, at the request of one of the daughters, Mary. Mary accompanied Mr Key to the solicitor’s offices on the day when he executed his Will.

The Court found that Mr Key was devastated by the recent death of his wife when he made his Will. This amounted to a severe affective disorder which on its own, or together with the mild dementia from which Mr Key was suffering, deprived him of testamentary capacity.

Alternatively, even on the assumption that he had capacity, the Will was invalid on the grounds of want of knowledge and approval. Mr Key had not applied his own mind and decision-making powers in apparently agreeing to his daughter’s assertion that his existing Will was unfair and that he should change his Will so as to leave his remaining property to his daughters.

 

LESSON: Where the testator is old and/or vulnerable, and is making a Will which favours one child over another, ask probing questions to make sure that the Will represents the testator’s independent wish, otherwise the Will may be invalid (see also Burgess & Burgess v Hawes [2012] WTLR 423). Keep a proper note.

If necessary, get in a doctor and/or delay execution until client has had time to recover from bereavement.

 

Hoff v Atherton [2005] WTLR 99.

 

The testatrix was a widow of 82 with no children or close relatives. She executed a Will in 1994, giving the residue of her estate to a close friend and neighbour, substantially reducing the entitlement of her godson and his sister. The solicitor attended upon her and read out the Will. However, the solicitor did not explain in any detail the terms of the Will or advise her as to the extent of her estate. The testatrix was suffering from early-onset dementia.

The Will was upheld on the basis that the Will was straightforward, and the testatrix had told the solicitor that she wanted to benefit her neighbour. However, it was accepted that, where there is evidence of a failing mind, coupled with the fact that the beneficiary has been concerned with the instructions for the Will, the Court may require evidence that:

(a)  the effect of the Will was explained to the testatrix;

(b)  the testatrix knew the extent of her property,

(c)  the testatrix did comprehend and appreciate the claims of his bounty to which he ought to give effect; and

(d)  the testatrix had considered the effect of the changes to her testamentary dispositions made by the Will.

 

LESSSON: In the case of a vulnerable, elderly testator, take steps to explain the Will so as to be certain that the testator actually understands its contents and effect.

 

Sifri v Clough & Willis [2007] WTLR 1453.

 

The testator made two Wills in favour of his wife. These Wills were set aside in a probate action, brought by the testator’s daughter, as the beneficiary of a previous Will, on the grounds of want of knowledge and approval. The solicitor had failed to ascertain from the testator what his true instructions were, and that he had taken instructions from the testator’s widow.

 

LESSON: Take instructions from the testator, not anyone else. Beware of “interpreters”.

 

Franks v Sinclair [2007] WTLR 439.

 

The Will was read to the testatrix by her solicitor son who benefited under the Will at the expense of the testatrix’s grandson with whom she had a very close bond. The most material provision (leaving the residue to the testatrix’s children, without naming them, in equal shares) was read out, but not explained. The Will was set aside for want of knowledge and approval. It was unlikely that the testatrix understood the effect of the clause just as a result of it being read out to her.

 

LESSON: If you are a solicitor and a beneficiary under a Will, get in another solicitor to advise the testator (see also Cushway v Harris [2012] EWHC 2273 (Ch).

Not only read, but explain, any complex provisions.

 

UNDUE INFLUENCE

 

Claims of undue influence rarely succeed. It is necessary to establish coercion. “Victimisation”, “domination” and “coercion” are the words used in the authorities. It is not sufficient to prove that the testator was “persuaded” to make a Will, or that there was an opportunity to exercise undue influence.

There must be direct evidence of coercion, or (as is more likely) indirect evidence which is sufficiently cogent evidence to persuade the court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation.

In a number of recent cases undue influence claims have failed due to the lack of evidence of coercion: Hubbard v Scott [2012] WTLR 29; Wharton v Bancroft (2011) EWHC 3250 (Ch) (Ch D); Cowderoy v Cranfield [2011] WTLR 1699.

 

Precautions

A solicitor should:

(a)  not take instructions, of final instructions, in the presence of a beneficiary; and

 

(b)  if any cause for suspicion arises, ask the testator whether any pressure has been applied to make the Will in question;

 

(c)  refuse to act if he knows or has reasonable grounds to believe that the instructions are affected by duress or undue influence.

 

TESTAMENTARY CAPACITY

Observe the golden rule

In Re Simpson (1977) NLJ 487 Templeman J said that:

In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.

 

In Key v Key the solicitor (Mr Cadge) was roundly criticised by the Judge who said:

As will appear, a significant element of responsibility for this tragic state of affairs lies with Mr Cadge. Contrary to the clearest guidance, in well known cases, academic texts and from the Law Society, Mr Cadge accepted instructions for the preparation of the 2006 Will, from an 89 year old testator whose wife of 65 years’ standing had been dead for only a week without taking any proper steps to satisfy himself of Mr Key’s testamentary capacity, and without even making an attendance note of his meeting with Mr Key and Mary, at which the instructions were taken. Mr Cadge’s failure to comply with what has come to be well known in the profession as the Golden Rule has greatly increase the difficulties to which this dispute has given rise and aggravated the depths of mistrust into which his client’s children have subsequently fallen.

 

In Burgess v Hawes [2012] WTLR 423 the solicitor, fatally, did not observe the golden rule. Mrs Burgess had suffered a number of mini-strokes. She made a Will disinheriting her son, Peter, who had at the time fallen out with her daughter, Julia, the main beneficiary of the Will.

The solicitor merely relied upon his own judgment that Mrs Burgess appeared to be capable. However, he had not met her before he took her Will instructions. He did not, therefore, have anything to judge her capacity against, and it was more difficult to judge her capacity as her daughter, Julia, was present at the same time. He noted that the testatrix was “compos mentis”. However, this comment was added to the Attendance Note after the event. The Will was set aside for lack of capacity.

LESSON: Do not rely upon own judgment of capacity, particularly where the testator is not known to you, and a major beneficiary is being cut out. If possible, observe the golden rule. Do not take instructions in the presence of a beneficiary.

 

Instruct a specialist neurologist

 

In Perrins v Holland [2009] EWHC 1945 (Ch), para. 59, Lewison J cast doubt on the medical validity of the golden rule:

 

Dr Gross stressed that the assessment of a person’s cognitive capability is a task of great difficulty. He suggested that a medical practitioner such as a specialist MS liaison nurse, or a GP might not be capable of the task, which could really only be adequately undertaken by a specialist neurologist. Even for a specialist neurologist the determination of testamentary capacity was, in his view, a very difficult exercise. I may say that his evidence cast considerable doubt on the medical validity of the so-called “golden rule” that in case of doubt about testamentary capacity a lawyer should call in a GP. It is also striking that during the course of the history of Robert’s illness no one (including medical practitioners) was willing to give an opinion on whether he actually had mental capacity. Nor was Robert tested to determine the extent of such cognitive defects as existed.

LESSON: Instruct a neurologist, rather than a G.P., if possible.

 

Instruct the neurologist fully

 

The value of the specialist’s evidence is dependent to a large extent by the information which he is given. In order to assess capacity, the specialist will need to know the legal test for capacity, and such factual matters as:

(a)  the nature and size of the estate;

(b)  the nature and quality of the relationship with the proposed beneficiaries, beneficiaries under previous Wills, family members and dependants; and

(c)  details of the provision made under, and the dates of, previous Wills.

 

The testator’s consent will be required to disclose such information.

 

No need to observe golden rule if need for urgency

A solicitor is not necessarily to be criticised for making his own assessment of capacity where there is a need for urgency, e.g. because the testator is terminally ill and/or because he wishes to make a Will in contemplation of marriage so that he can marry.

In Wharton v Bancroft  [2011] EWHC 3250 (Ch), Mr Wharton, who was terminally ill, made a death-bed Will in contemplation of marriage, leaving his entire estate to his partner, Maureen, of 32 years. The Will was prepared by a solicitor, Mr Bancroft, who read it to Mr Wharton before execution. Immediately after executing the Will, Mr Wharton married Maureen. He died a couple of days later.

Mr Bancroft was criticised for having failed to follow the golden rule. Norris J had this to say, at para. [110]:

I consider the criticism of Mr Bancroft for a failure to follow “the golden rule” to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that “the golden rule” has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.

 

INHERITANCE ACT CLAIMS

 

Statement of reasons for excluding or limiting provision

Such a statement can be very useful in rebutting a claim. It is not for the Court to rewrite the testamentary provisions of an estate lightly (see Iqbal v Ahmed [2011] EWCA Civ 900, at para. 17(v)). This reflects the principle that it is not for the Court to award legacies, or to determine that it might have been reasonable to make some provision for the applicant. The issue is whether the failure to make provision for the applicant’s maintenance was objectively unreasonable.

In Garland v Morris [2007] FLR 528 the testator left nothing to one of his two daughters (the claimant), leaving the bulk of his estate to his other daughter. The solicitor taking his instructions made a note of the testator’s reasons:

(a)  The claimant had made no attempt to contact him since 1986 and had not invited him to visit her.

 

(b)  He disapproved of her life style as an unmarried mother (with no established relationship with the child’s father) who was apparently content to live on state benefits.

 

(c)   He thought that state benefits were adequate to maintain the claimant and her children.

 

(d)  He also made the point that the claimant had inherited all of his first wife’s estate and in consequence had a house free of mortgage to live in.

 

(e)  He therefore wished his Will substantially to benefit his other daughter and her family, who were experiencing financial difficulties in Belgium. He wanted her children to go to university.

The solicitor’s assessment, which the Judge accepted, was that Mr Garland’s decision to leave nothing to the claimant was not based on resentment or spitefulness but reflected his wish that she should not receive any benefit as she had made no effort to maintain any contact or association with him or involve her with her son.

The Judge, in effect, accepted that the testator’s recorded reasons justified the lack of provision for the claimant. He said:

 

I think her father was reasonably entitled to conclude that the fact that the claimant had not met or spoken to him for so long, and the fact that she had already had a relatively substantial benefit from her mother’s estate, meant that she no longer had any reasonable claim on his bounty. It may well be that he did not have a full appreciation of the extent of the claimant’s financial difficulties, but even if he had done so I think he was entitled to conclude that the claims of his other daughter and her family, and his desire to fulfil his promises to assist them, outweighed any claim on the part of the claimant.

 

 

Statement must be accurate

 

In Gold v Curtis [2005] WTLR 673 the claim of an adult child succeeded. However, the testatrix had made a Will stating that she was not leaving anything to the adult child because he had “had enough from his parents during his lifetime” and he had been “very estranged during the last few years”. In fact, the applicant had received only a total of £1,800 some years previously. He had also resumed contact with the testatrix a few months before her death. There was a large enough estate to go round (£870,000).

 

The testatrix had, by saying that the claimant had had “enough”, acknowledged that the applicant was entitled to consideration, but had wrongly that her obligations and responsibilities to the applicant had been discharged by the lifetime payments. The claimant was awarded £250,000.

 

Bad reasons

 

In Ilott v Mitson [2011] WTLR 779 the testatrix left her entire estate of £486,000 to certain animal welfare charities, to whom she had no particular attachment. She left nothing to her only child, a daughter aged 50. The daughter was estranged from her mother. She had left home at 17 to live with a man, of whom the mother disapproved. When she married she did not even ask her mother to attend her wedding.

Despite three attempts at reconciliation, the daughter had lived entirely independently of her mother for 26 years. She never expected to receive anything from her mother. The reason for the estrangement between mother and daughter seems to have been that the testatrix disapproved of her daughter’s choice of partner. The Will was accompanied by a letter setting out the testatrix’s reasons for making no provision for her daughter.

The daughter was in financial need. She had five children. She lived almost entirely off benefits and tax credits. She did not work, or only did so sporadically, although she was not physically or mentally incapable of working.

The daughter succeeded at first instance. She was awarded £50,000 (capitalising her maintenance need of £3,000 per annum).

The District Judge analysed the reasons for the estrangement. He made a value judgment that the deceased had acted unreasonably in bearing a grudge over her daughter’s choice of partner, and that it was reasonable for the daughter to wish to remain at home for the time being to look after her children, and not to work.

 

LESSON: it does no good to make a statement giving reasons for no, or limited provision, if, as a matter of value judgment, those reasons are objectionable or unreasonable.

 

 

Some provision

 

The testator may well be advised to make some limited provision for a potential applicant for reasonable financial provision. In Ilott v Mitson the estate was worth £486,000. The District Judge awarded the claimant £50,000. Clearly, she did not consider that this was enough. She appealed on quantum. The charities appealed the District Judge’s decision that she should be entitled to any provision.

 

In any event, the Court of Appeal determined that (a) the District Judge had not erred in awarding her something; and (b) it would leave his decision on quantum in place.

 

What if the testatrix had left her daughter, say, £40,000 (less than 10% of the estate), and not left a letter setting out her objections to the daughter’s choice of partner? It might then have been very difficult for the daughter to have claimed that provision of £40,000 was unreasonable (even though she clearly thought that £50,000 was insufficient). As an added disincentive to the daughter, the Will could contain a provision that the daughter should forfeit her legacy if she challenges the Will.

 

 

Other useful statements

The testator might be advised to make statements to the effect that:

(a)  Despite previous gifts/maintenance to X, he is not assuming any further responsibility to maintain X (see Baynes v Hedger [2009] 2 FCR 183);

 

(b)  A “cohabitee” still maintains a separate household with a separate domestic economy (see Churchill v Roach [2004] 3 FCR 744; Baynes v Hedger  [2008] WTLR 1719);

 

(c)  The testator is not living with X “as man and wife”.

 

Proprietary estoppel

There may be a claim against the estate on the basis of proprietary estoppel. It must be established that:-

(a)  The testator has made a promise, representation or assurance that the claimant would acquire a proprietary interest in identifiable property;

(b)  The representation must be clear and unequivocal (in its context);

(c)  The assurance must be more than a mere statement of present (revocable) intention, and be tantamount to a promise (see Gillett v Holt [2001] Ch 210). The law requires that the promisor should make clear that the promise will not be revoked (Lloyd v Sutcliffe [2007] EWCA Civ 153).

(d)  It must be intended to be acted on; and

(e)  There are substantial acts of reliance.

Even if a clear enough promise has been made, and has been acted upon, the testator may still be entitled to change his mind if such a change of mind is attributable, and could be justified by, a change of circumstances (Thorner v Major [2009] 1 WLR 776, at para. [89]). Changing circumstances, and a change of mind, may be relevant to the relief, if any, which the court is to give (Murphy v Rayner [2011] 1 EWHC (Ch) 1, at para. 274). A testator’s obligations, pursuant to any promise giving rise to a proprietary estoppel, may be cut down by his obligations to other persons (Campbell v Griffin [2001] EWCA Civ 990, para. [34]).

The issue is whether, having regard to all the circumstances, the testator has acted unconscionably. In assessing those matters, it was necessary to look backwards from the moment when the promise fell due to be performed, and ask whether, in the circumstances which had occurred, it would be unconscionable for the promise not to be kept (Murphy v Rayner [2011] 1 EWHC (Ch) 1).

The court will only award relief designed to satisfy the “minimum equity” required to do justice to the claimant (Clarke v Swaby [2007] 2 P&CR 12, at [18]). The relief must be proportionate to the detriment that has been suffered (see Jennings v Rice [2003] 1 P&CR 100; Campbell v Griffin [2001] WTLR 981, at [34]).

 

Statement

It may be advisable for the testator to execute a written statement to the effect that:-

(a)  No firm promises of entitlement have been made;

(b)  There has been a material change of circumstances since any promise was made;

(c)  Any detriment incurred by the claimant has been limited;

(d)  Any detriment has been, or will be, compensated by reasonable provision made during lifetime, or under the Will; and/or

(e)  There are other factors, such as the claimant’s conduct, which make it not unconscionable to make limited, or no, provision.

 

Lifetime proceedings

The testator may be advised to bring proceedings during his lifetime for a declaration that a potential proprietary estoppel claimant has no interest in any property of the testator. The benefits are that:

(a)  The testator is still alive to give evidence;

 

(b)  No further detrimental reliance should accrue; and

 

(c)  There is a chance to negotiate a settlement.

In Bradbury v Taylor [2012] EWCA Civ 1208 a nephew claimed that his uncle had promised him his house in Cornwall, and that, in reliance upon this promise, he had moved from Sheffield to live with his uncle, and spent time and money on renovating the property. The uncle brought proceedings for a declaration that the nephew had no interest in his house. He denied ever having made any promise to his nephew.

Unfortunately, the uncle died the day before the matter was listed for trial. The nephew ultimately succeeded in his claim to a transfer of the house.

 

Joint tenancies

Solicitors should be aware that, in drawing up Wills for a husband and wife, there may be an inadvertent severance of a joint tenancy in the matrimonial home. This may be the case, even where no notice of severance is served, where (Carr v Isard [2006] EWHC 2095):

 

1. The Wills of both husband and wife are inconsistent with the continued operation of a joint tenancy, e.g. because the surviving spouse is given a right of occupation for life in the testator’s share; and
2. Both husband and wife know enough about the contents of the other’s Will for it is possible to infer that each was aware of the other’s intention to leave their respective shares in the jointly-owned property in a manner inconsistent with the continued operation of the joint tenancy.