Challenges to Wills due to lack of knowledge and approval – Khloe Kardashian or Cinderella?
Challenges to Wills based upon an alleged want of knowledge and approval seem somewhat of an ugly step-sister. Not popular, possibly not very well understood and certainly rarely written about. This paper attempts to shed some light on this unloved area of estates law and to explore the relationship between the complexity of a Will and the likelihood that a Court will find that a testator knew and approved of its contents.
The requirement that a testator know and approve of the contents of their Will is a separate and distinct requirement for validity. Even should it be proved that a testator was of full capacity and not subject to undue influence, a Will will not be admitted to probate if the document does not express the true intention of the testator. Hoff v Atherton  WTLR 99.
Historically knowledge and approval was assumed if it was shown that the Will was duly executed by a testator of full capacity who had read the document or had it read to her. While it is not unusual for judges to refer to this presumption even in recent decisions, in my view the correct statement of the law, at least since 1971, is that summarised by Sachs J in the unreported case of Crerar v Crerar which was followed by Latey J in Re Morris (deceased) where it was stated that:
The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.
Knowledge and approval is often linked with the doctrine of suspicious circumstances. In Perrins v Holland 2010 EWCA Civ 480 the Court described knowledge and approval as merely being shorthand for the absence of suspicious circumstances. With respect to their honours in that case, I would suggest that the doctrine is considerably broader than that.
While the existence of knowledge and approval is determined on the facts of each case, some factors which have been held to be relevant include:
- the absence of legal advice;
- subsequent statements of the testator inconsistent with the terms of the Will;
- the testator suffering from language, vision or hearing problems;
- whether the Will was radically different from previous Wills;
- a larger pattern of manipulative behaviour by the primary beneficiary; and
- the complexity of the Will.
The Complexity of the Will
I was driven to look more closely at the few cases which deal with knowledge and approval as the primary basis for relief after being involved in a discussion where the ability of a testator to know and approve of the contents of a Will containing a complex testamentary discretionary trust was questioned. Unfortunately, as the widespread use of complex discretionary trusts in Wills is a relatively recent phenomenon, I was not able to find any cases which dealt with a Will containing a complex testamentary discretionary trust.
On review of a few English cases which were decided on the basis of a lack of knowledge and approval, it is evident however that the complexity of a Will has a significant bearing upon the likelihood that a Court will find that a testator knew and approved of the contents of their Will. In the first case that I will discuss, Gill v Woodall & Ors  EWCA Civ 1430, the complexity of the Will was a significant factor in the Court finding a lack of knowledge and approval, whereas in the third case that I will discuss, Sherrington v Sherrington  EWCA Civ 326, the relative simplicity of the Will was an important factor in the Court of Appeal overturning a finding of a lack of knowledge and approval by the trial judge.
Set out below is a discussion of three English cases which illustrate the potential use of an allegation of want of knowledge and approval in circumstances where the terms of the Will do not accord with the testator’s apparent regard for disappointed beneficiaries but it is not possible to prove a lack of capacity or undue influence.
Gill v Woodall & Ors  EWCA Civ 1430
Is a decision of the England & Wales Court of Appeal involving the estate of Joyce Gill (“Mrs Gill”). Mrs Gill and her Husband (“Mr Gill”) had one child, Dr Christine Gill (“Dr Gill”). Despite being on good terms with their daughter, in 1993 Mr and Mrs Gill made Wills leaving their estate to the survivor of them, with the second of them to die leaving their estate to the Royal Society for the Prevention of Cruelty to Animals (“RSPCA”).
Mr and Mrs Gill’s Wills both contained a clause stating that no provision was made for Dr Gill “because I feel that she has been well provided for by me over a long period of time…”. While it was true that Mr and Mrs Gill had in 1986 given Dr Gill significant financial assistance in purchasing her first house, it would be hard to argue that this assistance justified making no further provision for her, especially in light of Dr Gill having worked free of charge on her parents’ farm for twenty years.
Mr and Mrs Gill’s estate was primarily comprised of a farm in North Yorkshire worth approximately £2 million. In light of this, Dr Gill argued (not unreasonably) that she had not received a level of provision from her parents during their lifetimes which would have justified their decision to make no provision at all for her in their Wills.
Dr Gill commenced her claim under the English equivalent of the Inheritance (Family Provision) Act. By the time that the matter proceeded to trial however her claimed had morphed into a claim that her mother’s Will should be set aside either because her mother did not know and approve of its contents or that Mrs Gill was unduly influenced by her husband.
In the alternative, Dr Gill claimed that the farm should be transferred to her by way of equitable relief based upon proprietary estoppel. This last claim was based upon Dr Gill having worked upon the farm without remuneration for 20 years in reliance upon an alleged representation that the farm would be bequeathed to her.
At first instance Dr Gill failed on the issue of knowledge and approval but succeeded on the issue of undue influence. The judge also found that Dr Gill would have succeeded on the ground of proprietary estoppel.
The RSPCA appealed against both of these decisions and Dr Gill cross-appealed against the judge’s decision that Mrs Gill knew and approved of the contents of her Will.
Somewhat bizarrely the Court of Appeal gave no decision in relation to the undue influence and estoppel arguments and instead upheld Dr Gill’s cross-appeal on the issue of knowledge and approval. It did so by taking the extraordinary step (for an appellate court where no new evidence was introduced) of reversing the judge below on the crucial fact of whether Mrs Gill was present at the meeting where instructions were given for the preparation of the Wills and whether Mrs Gill was likely to have read the draft Will sent to her and her husband.
By finding that it was unlikely that Mrs Gill was present when instructions for the Will were given to the solicitor and that there was no reason to believe that Mrs Gill read the draft Will that was posted to her house, the Court of Appeal was able to narrow the question of knowledge and approval to the meeting between Mr and Mrs Gill and their solicitor where the Wills were explained and executed.
The Court of Appeal found that Mrs Gill’s agoraphobia and associated anxiety disorder were so severe that she was unlikely to have comprehended the explanation of her Will made by her solicitor or understood the effect of the Will when it was read out to her other than to understand that the she and her husband were leaving their estates to each other when the first of them died.
The Court of Appeal was fortified in its view by evidence that Mr Gill was “a stubborn, self opinionated, domineering man who was prone to losing his temper quite easily which led to outbursts of fury. He was a bully who occasionally lost his temper with Mrs Gill if he considered she was being very critical of him or his conduct.” and evidence from a medical expert that:
Seeing a solicitor, even with Mr Gill present, would have been outside the set of situations within which Mrs Gill would have been expected to have been able to prevent the emergence of anxiety symptoms. This would be likely to have materially affected her ability to concentrate upon and digest what was being said to her during such a meeting and her relationship, of absolute dependence upon Mr Gill, would have made it very difficult for her to express a wish to make a will that was different to the one that he wished to make.
Thus, while there were elements which might point towards undue influence or even lack of capacity, the Court of Appeal was quite clear that it was a lack of knowledge and approval which was fatal to the Will. As Lord Justice Lloyd notes at para 70:
It is one thing to say that on a relevant date Mrs Gill had the necessary understanding of the nature and extent of the property of which she could dispose by her will, and of the claims of relevant persons on her benevolence. It is quite another to examine whether, in particular circumstances, she did in fact understand what was said to her at a given meeting and what was in the document which she signed. Nothing that Professor Howard said, or that the judge held, is inconsistent with the possibility of Mrs Gill having been able to execute a will the contents of which she did know and understand, if the contents were explained to her in different circumstances, in her home, by people she knew.
While strictly speaking it was obiter, it is interesting to note that at para 59 Lord Neuberger MR states:
I might add that, in light of the complexity of clause 4 of the Will, there must be some doubt whether, even if (the solicitor) had read it out on its own, Mrs Gill would have understood it…
Clause 4 in Mrs Gill’s Will read:
4. I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate unto my Trustees UPON TRUST that they shall sell call in and convert the same into money with power to postpone the sale calling in and conversion thereof for so long as they shall in their absolute discretion think fit without being liable for loss and shall with and out of the proceeds of such sale calling in and conversion and my ready money pay my funeral and testamentary expenses inheritance tax and debts and shall hold the residue UPON TRUST for the RSPCA of the Causeway Horsham West Sussex RH12 1HG absolutely AND I DIRECT that the receipt of the Treasurer for the time being of the RSPCA shall be sufficient discharge to my trustees…
As you can see from the clause as it is set out above, it is not particularly complex in the scheme of things. This comment (and similar comments in other cases such as those by Lloyd J. in Hart v Dabbs, unreported, 6 July 2000) leads one to wonder how a Court would treat a complex Will containing a lengthy testamentary discretionary trust should the issue of knowledge and approval be questioned.
The reason that the Court of Appeal was able to reverse the first instance judge on the crucial question of whether Mrs Gill was present when instructions for the Wills were given was that by the time of Mrs Gill’s death the solicitors had destroyed their file. Accordingly, as the solicitor was not able to specifically recall a Will that he had drafted 17 years earlier, the Court was left with inferences to be drawn from Mrs Gill’s medical condition and the solicitor’s explanation of his usual practice.
In this respect this case is a salutary reminder to solicitors not to destroy their Will instructions files until after the grant of probate or several years after the known or presumed death of their client.
The evidence at trial was inadequate in other respects. No evidence was given about Mrs Gill’s medical condition from any doctor who had seen her and no evidence was lead to explain why Mrs Gill wished to benefit the RSPCA at the expense of her only daughter with whom she was on good terms.
Fuller v Strum  EWCA Civ 1879
Is a decision of the England & Wales Court of Appeal dealing with the estate of the late Max Moses Strum (“the Testator”). It involves an appeal by Michael Fuller (“Michael”) from a rather peculiar decision of High Court Chancery Division which pronounced in favour of one pecuniary legacy and the boilerplate clauses of a Will, but against the validity of the appointment of Michael as executor and all of the other gifts in the Will.
The Testator was Jewish refugee who moved from Germany to England at the beginning of the second World War. In 1940 he married and in 1955 he and his wife adopted a 10 day old boy, the defendant Geoffrey Strum (“Geoffrey”). Geoffrey was born out of wedlock to an Irish mother. The Testator’s wife suffered a stroke in 1975, later became bed-ridden and died in 1985.
The Testator lived in a house that he owned in Essex. Geoffrey (unmarried and without a steady job) lived with the Testator until 1988, when the testator sold his house at a price 10% below its market value to the appellant Michael.
Michael’s parents were close friends of the Testator and his wife. Michael and his sister Vivienne were close to the Testator also, referring to him as “Uncle Max”. Michael for a period worked with the Testator at the restaurant at which the Testator was a waiter. Later, when Michael commenced a business selling antiques at car boot sales, the Testator regularly accompanied him to assist with sales.
On the date of settlement of Michael’s purchase of the Testator’s house, Michael attended at the Testator’s house with Michael’s aunt Clara and a mutual friend, Mr Aghajanoff. On this day Michael gave the Testator £15,000 to invest on Michael’s behalf in Israel, where the Testator was soon to emigrate. This transaction was documented in a short agreement between Michael and the Testator.
On the same day the Testator suggested that he should write his Will. The Testator produced a blank Will form and he and Michael went to a bedroom in the house where the Testator dictated his Will to Michael who wrote it on the Will form.
The Will was in the following form:
This is the Last Will & Testament
of me MAX MOSES STRUM
of 162 GLENGALL ROAD, WOODFORD GREEN,
in the County of ESSEX made this 31st
day of MARCH one thousand nine hundred and EIGHTY-NINE
I hereby revoke all Wills and Codicils made by me at any time heretofore. I appoint
to be my Executor, and direct that all my Debts and Funeral Expenses shall be paid as soon as conveniently may be after my decease.
I give and bequeath unto BETTY GRIFFIN OF 144, HIGHAM HILL ROAD, E 17, MY VERY LOYAL, LOVING FRIEND AND COMPANION FOR MANY YEARS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. I GIVE AND BEQUEATH UNTO VIVIENNE CUMMINGS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. I GIVE AND BEQUEATH UNTO SARAH CUMMINGS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. I GIVE AND BEQUEATH UNTO MICHELLE CUMMINGS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. VIVIENNE AND HER DAUGHTERS HAVE ALWAYS WELCOMED ME INTO THEIR HOME, GIVEN ME MEALS AND OFTEN TAKEN ME OUT. I KNOW THEY WILL REMEMBER “UNCLE MAX” WITH AFFECTION. I GIVE AND BEQUEATH UNTO MICHAEL FULLER THE SUM OF £10,000 (TEN THOUSAND POUNDS) FREE OF TAX. (THE FOUR LAST NAMED BENEFICIARIES ALL RESIDE AT 162 GLENGALL ROAD WOODFORD GREEN.) I HAVE KNOWN MICHAEL, AND OUR FAMILIES HAVE BEEN FRIENDS, FOR OVER 40 YEARS. HE HAS BEEN A LOYAL AND TRUSTED ALLY AND CONFIDANTE OF MINE AND I WILL NEVER FORGET HIM TELLING ME THAT SHOULD I, GOD FORBID, EVER NEED A KIDNEY TRANSPLANT, HE WOULD NOT HESITATE IN DONATING ONE OF HIS TO ME. THOSE WERE THE KINDEST WORDS ANYONE HAS EVER SAID TO ME. MICHAEL WAS ALMOST LIKE A SON TO ME AND I KNOW HE WILL REMEMBER ME WITH GREAT AFFECTION. THE £15,000 (FIFTEEN THOUSAND POUNDS) OF MICHAEL’S MONEY THAT I AM HOLDING IS THE SUBJECT OF AN EARLIER DOCUMENT. I HAVE BEEN THINKING OF LEAVING THE RESIDUE MY ESTATE TO CHARITY, AND NOT MY ADOPTED SON GEOFFREY. IN ALL THE YEARS I NURSED MY WIFE, HIS MOTHER, HE NEVER ONCE RAISED A FINGER TO HELP ME. I WILL NEVER FORGET OR FORGIVE THAT ON LEAVING THE HOSPITAL WHERE HIS MOTHER HAD JUST DIED, HE SAID TO ME, “MUM SAID YOU SHOULD SELL THE HOUSE AND GIVE ME HALF THE MONEY.” I HATE HIM LIKE POISON, THAT IRISH BASTARD. HOWEVER ON REFLECTION I DO GIVE AND BEQUEATH, AFTER PAYMENT OF ALL TESTAMENTARY EXPENSES AND ALL TAXES, THE RESIDUE OF MY ESTATE UNTO GEOFFREY STRUM, ALBEIT VERY GRUDGINGLY.
After the Will was drawn by Michael, Michael and the Testator took it to the kitchen where the Testator covered the text of the document and signed it in front of Clara and Mr Aghajanoff, who then signed the document as witnesses.
The Testator then went to Vivienne’s flat for a coffee. He tapped his jacket pocket and told her that he had just signed his Will and that she should not tell Geoffrey.
The first named legatee, Mrs Griffin, was a dear friend of the Testator. Her evidence was that just before he left for Israel the Testator told her that he had made a Will and left her something in it.
On or shortly after 31 March the Testator made two gifts. One of £16,000 to Geoffrey and one of approximately £3,500 to Mrs Griffin.
The Testator made a photocopy of the Will which he gave to Michael. He also gave a locked metal deed box to Michael. Every year when he returned to England from Israel, the Testator went to the room where the deed box was stored. On his death the original Will was found by Michael in the deed box.
At the trial the main issue argued was the allegation by Geoffrey that the Testator’s signature on the Will was a forgery. Each party called an expert who, unsurprisingly, gave evidence in support of their case. The Court also appointed its own independent expert whose evidence was that the Testator’s signature on the receipt for Michael’s £15,000 was genuine but that there was “very strong positive evidence” that the signature on the Will was a forgery.
Despite this evidence, both the judge at first instance and the Court of Appeal, held that the Testator’s signature on the Will was not forged. The reason given by the Court for failing to make a finding of forgery was that to do so would require a finding of fraud against the subscribing witnesses Clara and Mr Aghajanoff, witnesses whom the court had found to be reliable and honest.
I would suggest that the Court’s reasoning in this regard is flawed or at least lacking in imagination. It was at a Legalwise seminar 3 or 4 years ago that a handwriting expert spoke of a case in which he had been involved where two men were present in a used car yard shopping for cars when they were asked by a salesman to come to his office and witnesses a Will.
The men saw the testator sign a Will and then were handed what appeared to be the same document to sign as witnesses. Unbeknownst to them, after the testator had signed a Will leaving his estate to his family, the car dealer by a sleight of hand presented a different Will to the witnesses which left the testator’s estate to the car dealer and exhibiting a forged signature of the testator.
When the testator died the car dealer attempted to obtain probate of the forged Will. The signature of the testator was found to be a clear forgery and the two witnesses were charged and convicted of being knowing parties to the fraud.
It was only when the car dealer contracted terminal cancer and confessed on his death bed what he had done that the conviction of the two witnesses was quashed.
In light of the expert testimony in Fuller v Strum regarding forgery, one wonders whether a similar sleight of hand might have occurred to cause innocent witnesses to inadvertently attest a forged signature.
The other issue argued at trial by Geoffrey was want of knowledge and approval. At first instance the judge found in favour of Geoffrey on this issue, stating:
I find that the language of the will is so out of character with the picture of Max Strum that I have gleaned from the evidence, and so inconsistent with the gift of £16,000 to the defendant and with the other evidence of the relationship between father & son, that I have serious doubts as to whether Max Strum knew and approved of anything in the will signed by him on 31st March 1989 other than the legacy of £6,000 to Betty Griffin.
Accordingly, the judge at first instance found that the Testator knew and approved of only two things, namely that he was making a Will and that he was leaving his friend Mrs Griffin £6,000.
On appeal Lord Justice Gibson succinctly set out the Court’s approach to the question of knowledge and approval at para 33 as follows:
In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be “vigilant and jealous” in examining the evidence in support of the will (Barry v Butlin (1838) 11Moo PC 480 at p.483 per Parke B.).
While the Court of Appeal reversed the first instance judge’s finding that part of the Will was valid but part was not due to a lack of knowledge and approval, Lord Justice Gibson conceded that the existence of such a curate’s egg of a Will, while rare, was entirely possible. At para 36 he notes:
I do not doubt that it is possible for a court to find that part of a will did have the knowledge and approval of the deceased and that another part did not. An example would be if a solicitor, who has been instructed to draft a will, obtains the deceased’s approval of the draft but subsequently before execution adds a clause without drawing it to the attention of the testator and keeps the executed will. But the circumstances in which it will be proper to find such a curate’s egg of a will are likely to be rare. In my judgement it would not be proper for the court to pronounce against part of a will as a means of expressing disapproval of the propounder. Where a will has been duly executed by a deceased of testamentary capacity who knew that he was making a will and is shown to have known and approved of a specific part of the will, the court must consider how real is the possibility that the deceased did not know and approve of the remainder of the will and that requires a careful examination of all the circumstances including the directions and dispositions of the will.
There were two other matters of principle raised by the Court of appeal. Firstly, their Lord Justices made it clear that the burden of proof which a propounder faces in proving that the testator knew and approved of the contents of a Will is the civil standard of the balance of probabilities.
Secondly, the fact that the onus of proving knowledge and approval is often referred to in English cases as a requirement for the propounder to show the “righteousness of the transaction” is not to be taken as a licence for the court to refuse probate to a document merely because it disapproves of its content or circumstances of execution.
In deciding the appeal both Lord Justice Gibson and Lord Justice Chadwick placed considerable reliance upon two factors. Firstly, that the Testator had taken the original Will with him after execution and had had multiple chances to re-read it in the years before his death. Secondly it was considered important that the Will was relatively simple for even a layman to understand. As Lord Justice Chadwick put it at para 62:
…if the testator did read the document, he must have understood the contents. This is not a case in which the effect of what had been written would, or might, not have been readily intelligible. Indeed, as Lord Justice Peter Gibson has put it, “the style of the Will and in particular the idiosyncratic comments on the beneficiaries grab the attention of the reader.
Sherrington v Sherrington  EWCA Civ 326
Is a decision of the England and Wales Court of Appeal dealing with the Will of the late Richard Sherrington (“the deceased”). The deceased was a successful solicitor and businessman who was both the founder and managing partner of the law firm Sherringtons and the owner of a loan broking business.
The deceased had three children by his first wife. In 1999 he married his second wife, Yvonne. Yvonne had two daughters by an earlier marriage. One of Yvonne’s daughters, Nathalie, worked in the deceased’s law firm as a Wills clerk.
In 2001 the deceased asked Nathalie to prepare new Wills for he and Yvonne. Despite having no legal qualifications, Nathalie managed to draft the two Wills with the use of the firm’s precedents. The Wills were very simple and contained a number of typos, including referring to the deceased as the testatrix.
The Wills drafted by Nathalie were handed by her to her mother on 7 September 2001. That evening her mother and the deceased were due to fly to France for a short holiday. Not having executed a Will since his marriage to Yvonne, the deceased decided to execute his Will that evening.
The deceased signed his Will in front of his chauffeur’s wife and an office cleaner who spoke almost no English. The chauffeur’s wife and the cleaner attested the deceased’s signature. The deceased kept the executed Will.
The deceased’s Will left his entire estate to his second wife Yvonne, with a gift over to his daughters from his first marriage should Yvonne not survive him. The Will made no provision for the deceased’s mother, for whom he was financially responsible.
The deceased died in October 2001 in a car accident, aged 56. His daughters from his first marriage challenged the Will on two grounds. Firstly, they argued that the Will had not been executed in accordance with the Wills Act, as the witnesses signed the Will before the deceased. Secondly, they argued that the deceased did not know and approve of the contents of the Will. At trial the daughters added a further ground, namely that if the witnesses did sign after Will after the deceased, then they did not intend to attest his signature.
The trial judge held that the deceased had signed the Will prior to the attesting witnesses, but nevertheless decided that the Will was invalid due to the attesting witnesses not intending to verify the deceased’s signature when they signed the Will.
By way of obiter the trial judge also ruled that the Will would have been invalid in any event for want of knowledge and approval. The trial judge decided that as the Will:
- left everything to a wife with whom the deceased was no longer on good terms;
- left his children of whom he was very fond at the mercy at his second wife with whom his children were not on speaking terms;
- was prepared by a non-lawyer despite the deceased having access to experienced estates solicitors;
- contained several obvious typographical errors;
- was prepared in a rush;
- was witnessed by a person with almost no understanding of English;
there were suspicious circumstances of such magnitude that it would take considerable evidence for the proponent of the Will to prove that the deceased knew and approved of the same. The judge was of the view that the evidence led by Yvonne was not sufficient to dispel the suspicious circumstances and hence he could not be satisfied that the deceased was ever informed of the contents of the Will or ever read it.
On appeal the Court of Appeal upheld the finding of the trial judge that it was necessary that a witness intend to attest the testator’s signature when signing a Will in order for the Will to be valid. Despite this and despite the fact that both of the witnesses were adamant that they did not see the deceased’s signature on the Will and that they did not intend to attest it, the Court of Appeal upheld the appeal on the issue of attestation. At para 42 Lord Justice Peter Gibson explained the Court’s reasoning as follows:
It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has “the strongest evidence”, in Lord Penzance’s words. The same approach should, in our judgement, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witnesses indicated, viz, that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the will particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.
In effect the Court of Appeal was of the view that if the trial judge did not believe the witnesses when they said that they signed before the deceased did, there was no reason why the trial judge should have believed them regarding their intention to attest the deceased’s signature.
The Court of Appeal also over-ruled the trial judge on the issue of knowledge and approval. The reason for over-ruling the trial judge was explained succinctly by Lord Justice Peter Gibson at para 97 thusly:
The judge appears to have thought that unless Yvonne produced evidence, which the judge found credible, that the deceased read the Will before signing it, the burden of proof on her to dispel the suspicion roused by her involvement in the preparation of the Will and being the beneficiary under it was not discharged. That is not correct. The court must consider the inherent probabilities and in so doing it must look at all the relevant evidence, including the evidence of what happened after the Will was executed. (emphasis added).
The Court of Appeal weighed the rather unusual features of the Will outlined earlier against three important facts. Firstly, the deceased was an experienced solicitor who is unlikely to have signed anything (let alone a Will) without at least skim reading it.
Secondly, the Will was relatively simple and in a form with which the deceased was familiar (being his own firm’s precedent Will) and hence the deceased can reasonably be expected to have understood the effect of the Will after even a cursory reading.
Thirdly, the deceased retained possession of the Will after its execution and hence had ample opportunity to read it in depth and draft and execute a new Will should he not have been content with its terms.
In light of these three factors, it is understandable, if a little insensitive to the trial judge, that the Court of Appeal described as fanciful the notion that the deceased did not know and approve of the contents of his Will.
Use of Medical Experts to Assess Capacity to Make a Will
There are two main occasions when a solicitor will require the assistance of a medical practitioner to assess capacity to make a Will. One of these is when a solicitor is drafting a Will for client and the other is when a you are seeking to propound or invalidate a Will in court proceedings.
In many ways these occasions are two sides of the same coin. Considering what a lawyer for an opposing client will be looking for as evidence of lack of capacity in litigious proceedings can inform your actions in obtaining medical evidence to protect the Will that you draft from such a challenge.
Obtaining Evidence of Capacity When Drafting a Will
As you are no doubt aware, when a client presents who appears to have a medical condition which may impact upon their capacity to make a Will, it is imperative to have your client assessed by an appropriate medical practitioner prior to the execution of the Will.
Ideally the assessment of your client will be carried out by a geriatrician. If your client is already consulting a geriatrician or related medical professional, you can generally simply arrange for them to bring their next appointment forward rather than make a special appointment solely to assess capacity. In this way the appointment will often be covered by Medicare, rather than incurring a separate fee for an expert’s report.
If your client is not already seeing a geriatrician, then you will need to decide whether the risk of a challenge to the Will is sufficiently great to merit having your client seek a referral from their GP to a geriatrician. Factors to consider include the size of the estate, whether any children or beneficiaries of previous Wills are being excluded from the new Will and the degree of apparent impairment of the testator. At the end of the day it is probably best to simply explain the costs, risks and benefits of consulting a geriatrician or a GP and then leave it for your client to decide.
Whether you refer your client to a geriatrician or a GP, the procedure that you should follow is the same. You should start by obtaining a written consent from your client authorising their doctor to provide information and documentation about them to you. This authority should then be sent to the doctor with a brief letter explaining why you are sending your client to that doctor and what information you require from the doctor.
It is not good enough to simply ask the doctor whether your client has capacity. Such a question is almost meaningless. You need to specify the task to which your enquiry about capacity relates. When you are enquiring about your client’s capacity to make a Will, you need to remember that it is unlikely that the doctor will be aware of the exact nature of capacity legally required to make a valid Will. To this end I suggest that include a summary of the test of capacity to make a Will from Banks v Goodfellow (1870) LR 5 QB 549 or one of the more recent Australian re-statements of this test.
You should also ensure (if at all possible) that your client sees the doctor on the same day that they execute their Will. This can be achieved by asking the doctor to telephone you with the results of their assessment on the day that they meet with your client and then asking them to send a brief letter confirming the results of their assessment. If they are not willing to send a confirming note or they fail to do so, then the second best solution is to write to the doctor confirming the matters discussed in your telephone conversation with the doctor and asking them to contact you if your understanding of that conversation is incomplete or incorrect.
Set out on the following page is a sample letter to a doctor.
2 July 2016
Dr Robert Dobalina
8 Homosapien Road
SALISBURY EAST SA 5109
Dear Dr Dobalina,
Mr Ebenezer Goode
I act for Mr Ebenezer Goode in relation to the preparation of a new Will. I understand that you will be seeing Mr Goode on 1 July 2011 at 10 am. I should be grateful if on that occasion you would assess Mr Goode to ascertain whether he has sufficient capacity to make a new Will.
In case it is of assistance I set out below the legal requirements for capacity to make a Will.
The testator must:
- understand the nature of his act, i.e. executing the Will, and its effects;
- understand the nature and extent of the property of which he is disposing;
- be able to comprehend and appreciate the claims upon his bounty;
- not be subject to any disorder of the mind as shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.
Once you have assessed Mr Goode, please telephone me, as I will be seeing Mr Goode later on the afternoon of the 1st with a view to him executing his Will. I should be grateful if you would follow up that telephone call with a brief letter summarising your findings.
I enclose a medical authority signed by Mr Goode.
STOREY, CHARMLESS & MANN
Obtaining Evidence of Incapacity When Challenging a Will
When briefing an expert in proceedings where a Will is being challenged for lack of capacity, there are a few matters which it is useful to bear in mind.
- Courts are rightfully sceptical of the ability of GPs to assess capacityUnfortunately, while a large number of assessments of capacity are made by GP’s either formally at the request of a solicitor or retrospectively from their notes after the testator has died, very few GPs have sufficient training to make an accurate assessment of capacity. Three other factors add to this lack of training to make an assessment of capacity by GPs risky to rely upon.Firstly, there is a degree of human nature in a GP not wanting to tell their patient (a return customer with whom they will often have built a rapport) that they no longer have capacity.Secondly, as GPs often see the same patient on a regular basis over an extended period of time, it is often difficult for them to notice what will generally be a very gradual reduction in capacity. This issue is exacerbated by the fact that with a regular patient there will often not be any need for the GP to ask the type of detailed questions which one would ask a new patient which might disclose a lack of capacity.Thirdly, people suffering from dementia (like people who cannot read and routinely “forget their glasses”) often become very good at masking a failing memory, using tools such as subtly changing the topic when a question is asked to which they can no longer remember the answer.
- Don’t be overly reliant upon a retrospective assessment of capacity by a Geriatrician who never met the patient.Most geriatricians are willing to examine a deceased testator’s medical notes and provide an opinion on the likelihood that the person had sufficient capacity to execute a Will. For the reasons outlined above, this assessment will often be more accurate than the opinion of the deceased’s treating GP who may never have had cause to turn their mind to the issue of capacity.It is important to remember however that no matter how convincing your expert and no matter how compelling their reasoning, it is not uncommon for a judge to prefer the evidence of a treating GP or even a lay witness as to capacity when that GP or lay witness has the advantage of having seen and spoken with the testator at or about the time of execution of the Will.In both Blackman v Man  WTLR 389 and Re Wilkes  WTLR 1097 the court preferred the evidence of lay witnesses who had seen the testator at or about the time of execution of the Wills in question to the opinions of eminent medical specialists who had not.Closer to home, but expressing the same preference for contemporaneous observation over expert testimony from geriatricians who did not meet the testator, is the decision of Justice Applegarth in the Queensland case of Frizzo v Frizzo  QSC 107.This case involved an elderly widow (“the Testator”) who on 28 January 2006 dictated a new Will (“the 2006 Will”) to her treating doctor immediately before undergoing surgery. The 2006 Will left the Testator’s estate equally between all five of her children. The 2006 Will revoked a Will executed by the Testator in 2003 (“the 2003 Will”) which favoured one of her sons, Shane Frizzo, over the other four.At the time of executing the 2006 Will the Testator was in hospital due to having broken her hip in a fall on 20 January 2006. While in hospital she suffered a heart attack. At various times in the following days the Testator was delirious.By 27 January 2006 the Testator was free of delirium and was assessed as being sufficiently recovered from her heart attack to undergo surgery to repair her hip. As no operating theatres were available the Testator was re-scheduled for surgery on the 28th.On the 28th, while in a holding bay awaiting surgery, the Testator informed nursing staff that she wished to change her Will. She had not yet taken any pre-operative sedatives and appeared lucid and calm. After considering her mental state and capacity and forming the view that she had capacity to make a Will, one of the Testator’s doctors recorded her testamentary wishes, which were then signed and witnessed. The doctor also had the Testator dictate the full names of her five children, which he recorded on a separate piece of paper.The Testator survived the hip surgery and underwent a Mini Mental State Examination (MMSE) two weeks later. As the Testator scored well on the MMSE, the challenge to her capacity to make the 2006 Will was limited by counsel at trial to an allegation that the Testator was still suffering from delirium on 28 January, although the plaintiff’s expert, Dr Jane Hecker, expressed the view that the Testator was probably also suffering from vascular dementia of sufficient severity to deprive her of testamentary capacity.Justice Applegarth usefully summarised the effect of Australian authorities regarding capacity to make a Will at para 23, stating:
While extreme age or grave illness are circumstances that will attract the vigilant scrutiny of the Court, neither is, of itself, sufficient to establish incapacity. The question is whether those or other circumstances so affected the testatrix’s faculties as to render her unequal to the task of disposing of her property.
If, however, doubt is raised as to the testatrix’s mind, memory and understanding, then the Court is thrown back onto an examination of the evidence as a whole to determine whether the proponent has established affirmatively that the testatrix was of sound mind at the time of executing the will.
He then quoted the High Court decision of Worth v Clasohm (1952) 86 CLR 439 at 453 where Dixon CJ, Webb and Kitto JJ stated:
The effect of doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.
After reviewing all of the evidence Justice Applegarth preferred the evidence of the doctors present when the Testator dictated the 2006 Will, despite neither of those doctors having any particular expertise in assessing capacity, stating at para 31:
…the issue of capacity is not one to be decided by expert witnesses, even by expert witnesses of the standing of Dr Byrne and Dr Hecker.
While there are not yet (to the best of my knowledge) any cases in which the complexity of the Will in and of itself has been held to cast doubt upon the testator’s knowledge and approval of its terms, the relationship between the complexity of a Will and the sophistication of the testator is clearly a matter considered by the Courts when a want of knowledge and approval is alleged.
This is a matter worthy of consideration both when drafting a Will and when resisting an application for a grant of probate.