Knowledge & Approval - A New Approach

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KNOWLEDGE AND APPROVAL:

A NEW APPROACH?

A person challenging a will often relies upon the absence of the testator’s knowledge and approval of the contents of the will as a ground for the court to find that the will is invalid. This article explores the requirement for knowledge and approval in light of the Supreme Court’s decision in Marley v Rawlings [2014] UKSC 2.

In Marley, due to an error by the solicitor, the husband signed the will intended for his wife and vice versa. The Supreme Court was prepared to treat this as a clerical error, thereby considerably widening the scope of what had previously been considered to be a rather restricted form of relief. By this means, rectification under s.20(1)(a) of the Administration of Justice Act 1982 ("AJA 1982") was made available. The Supreme Court also considered the requirement for the testator to have knowledge and approval of the terms of the will.

Before a will can be admitted to probate, the court must be satisfied that the testator knew and approved of its contents (Fuller v Strum [2001] EWCA Civ 1879). The fact that a testator has properly executed a will is sufficient evidence of his knowledge and approval of its contents, unless suspicion attaches to it (Guardhouse v Blackburn (1866) LR 1 P & D 109). Whether the circumstances surrounding the preparation and execution of a will arouse the suspicion of the court is a question of fact, to be determined in light of the full background of the relationships between the relevant parties (Singellos v Singellos [2010] EWHC 2353 (Ch)).

In Strum Chadwick LJ stated:

… 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.

In Marley, the Supreme Court found that although the testator had not executed the will with full knowledge and approval of its contents and that it did not appear that the testator intended by his signature to give effect to the will (s.9(b) of the Wills Act 1837), the document could nevertheless be rectified pursuant AJA 1982 to s.20(1):

as a matter of statutory interpretation I can see no reason why the word "will" in section 20(1) could not be read as meaning a document which, once it is rectified, is a valid will. After all, rectification operates retrospectively …

The effect of Marley is that a document purporting to be a will, but which does not on its face satisfy the provisions of s.9 of the Wills Act 1837 and the contents of which were not known of and approved by the testator, may be saved and rendered formally valid by rectification.

It is unavoidable that mistakes will happen in the drafting and execution of wills. Challenges to a will on the ground that the testator did not know and approve of its contents will always be met by the person propounding the will with evidence that the testator gave the instructions for the contents of the will. Moreover, following Marley, challenges will more often be met by a counterclaim by the person propounding the will for it to be rectified under

AJA 1982 s.20, so that the will (when rectified) says what the evidence apparently demonstrates the testator wanted it to say.

Whether the person propounding the will affirmatively asserts that the testator did know and approve of the contents of the will or claims rectification of the contents of a will, evidence must be given of the testator’s instructions for the preparation and drafting of the will. It is up to practitioners to ensure that appropriate measures are in place to mitigate the effects of a challenge to a will.

Given the likely increase in the number of claims for rectification, will writers should take steps to ensure that a full and very careful attendance note is made of a testator’s instructions for the preparation of a will at the time or as soon as possible after the testator has given the instructions. Such attendance notes invariably form the most important piece of documentary evidence in the case because if the person propounding the will is able to establish the testator’s knowledge and approval at the time of giving the instructions for the will, very little evidence of the position at the time of execution is required (In the Estate of Wallace [1952] 2 TLR 925).

Further, contentious practitioners should be astute to the possibility opened up by Marley to argue that a will which would otherwise be defective or entirely void because the testator did not know and approve its contents, may be capable of being saved by rectification.

Adrian Carr (1999 Call) is a barrister at Tanfield Chambers and practises in the all areas of contentious and non-contentious wills, probate, administration and claims under the I(PFD)A 1975.