As we have highlighted in previous blogs, challenging a will on the grounds of ‘want of knowledge and approval’ is not always easy. The recent case of King v King (2014) demonstrates that, in cases where testamentary capacity and execution are not in dispute, if a claimant is unable to satisfy the court that the circumstances in connection with a disputed will are sufficiently suspicious then a claim on the grounds of want of knowledge and approval will not succeed.
Elaine King (the Claimant) brought a claim against the estate of her late husband James King, disputing the validity of a will he had made in September 2005 which left his estate to his two adult children from a previous marriage.
James King and the Claimant had lived together since the 1960s. They lived in a property in Essex owned by Mr King. He had executed a will in 1991 which left his estate to the Claimant. In May 2005, following the death of his brother, Mr King (apparently without the Claimant’s knowledge) instructed Mr Ellis to prepare a new will for him. Mr Ellis was a solicitor and was the husband of Mr King’s niece. The new will was executed on 21 June 2005 (the June will). Under the June will Mr King left his estate to be divided equally between his two children, with the Claimant to be given a right to occupy the property in Essex for life.
Mr King and the Claimant were married in September 2005, which had the automatic effect of revoking the June will. Accordingly, Mr King instructed Mr Ellis to prepare a new will on the same terms as the June will, and this was executed by Mr King on 27 September 2005 (the September will).
The Claimant issued a claim against Mr Ellis (the executor) and the beneficiaries disputing the validity of the September will. Mr Ellis applied for summary judgment against the Claimant on the grounds that the Claimant had no real prospect of succeeding on her claim. Summary judgment was granted against the Claimant and the Claimant appealed.
On appeal the High Court considered whether Mr King, in making the September will, did so with knowledge and approval of its contents. The testamentary capacity of Mr King was not in dispute. However the Claimant submitted that there were suspicious circumstances surrounding the September will by highlighting that Mr Ellis was a member of the ‘family circle’ and that Mr King’s eyesight was so poor he could not have read the will.
The Judge did not find it suspicious that Mr Ellis had been involved in the preparation of the 2005 wills. Neither Mr Ellis nor his wife took any benefit under the 2005 wills and there was no reason why he should not have been involved, as Mr Ellis had carried out legal work for Mr King in the past. Mr Ellis had prepared attendance notes recording Mr King’s instructions as to the terms of the 2005 wills which “set out a clear and rational basis for Mr King’s decision to change the distribution of his estate provided for in the 1991 will”. As such, the submission that Mr Ellis’ involvement was suspicious carried no weight.
With regard to Mr King’s eyesight, there were inconsistencies in the pleadings as to the limitations of Mr King’s vision and the Claimant admitted that Mr King was able to read with a magnifying glass. Mr Ellis’ evidence, which the Judge accepted, was that he had read the terms of the wills over to Mr King before they were executed. The Judge said that although it was “preferable for a will to record that it has been read over to the testator, that is not essential” if the court is satisfied that the testator’s instructions were embodied in the will.
The Judge also stated that Mr King having limited vision “certainly does not indicate that he was not capable of understanding and approving the content” of the September will. The Judge went on to say that “the state of Mr King’s eyesight… is not itself a suspicious circumstance in the context of this case”.
Accordingly the Judge ruled that “in the absence of suspicious circumstances and in the light of the undisputed evidence of Mr King’s testamentary capacity and due execution” of the September will, Mr King’s knowledge and approval was presumptively established. Therefore summary judgment against the Claimant was upheld.
Want of knowledge and approval claims are often attractive for claimants who can show that there are suspicious circumstances surrounding the creation or execution of a will. This is because, where there are suspicious circumstances, the burden of proof shifts to the person relying on the will to establish in evidence that the testator did know and approve of the contents of their will. However, and as the King case shows, where there are no circumstances that arouse or excite the suspicion of the court and there is proof of testamentary capacity and proper execution, there will be a presumption of knowledge and approval and the claim will fail.
The Judge in this case clearly felt that the circumstances surrounding the execution of Mr King’s 2005 wills were not suspicious and therefore the Claimant did not overcome the first hurdle necessary to succeed in a want of knowledge and approval claim. This is not surprising; having a family member prepare your will or a testator having questionable eyesight are unlikely to amount to suspicious circumstances on their own. Examples of factors which may be more likely to excite the suspicion of the court include radical changes to previous wills without explanation, errors and/or spelling mistakes, unusual behaviour of the testator and using witnesses who are not independent.
Knowledge and approval claims also tend to be stronger when dealing with homemade wills because (a) homemade wills are more likely to have been made in suspicious circumstances and (b) if the circumstances are deemed suspicious, it will then be more difficult for a person seeking to rely on the will to evidence knowledge and approval with contemporaneous documents or, for example, witness evidence of an independent solicitor.