How Do You Challenge a Will by Anna Illingworth
There are a number of reasons for challenging a Will, those include lack of testamentary capacity, lack of valid execution, lack of knowledge and approval, undue influence, fraudulent wills and forged wills. This article looks at lack of knowledge and approval in the light of the recent decision in Sharpe v Hutchins.
A person must have knowledge of, and approve of, the content of their Will. They must know that they are signing a will and approve its contents. It is possible to contest a will on the basis of a lack of knowledge and approval, even if the Will appears to be validly executed and the testator had mental capacity but a claimant would have to show that the Testator was not aware of the content of the Will or that there were suspicious circumstances.
In Sharpe v Hutchins the Testator had made a Will in 2011, leaving his Estate to a cousin and the children of a close school friend. In 2013 he made a new Will, leaving his entire Estate to Mr Sharpe a local builder, who had helped him with a leaking gutter free of charge.
Both Wills were homemade but validly executed in front of two witnesses. The 2013 will was witnessed by a financial advisor who was visiting the Testator, Mr Butcher, and by a plumber who was carrying out work at Mr Butcher’s bungalow.
Mr Sharpe brought proceedings asking the Court to pronounce in favour of the 2013 Will which benefitted him. The claim was defended by the cousin and the children of the close school friend who would have benefitted under the earlier Will.
The Judge concluded that she was satisfied that the 2013 Will was executed with the knowledge and approval of Mr Butcher and that he intended to give effect to his testamentary wishes, and she went on to pronounce for the 2013 Will. The Judge made her decision by concluding (a) that Mr Butcher had understood the 2013 Will when he executed it and secondly that he understood what the effect of the 2013 Will would be. The Judge found that any degree of suspicion surrounding the 2013 Will was relatively low and so upheld the fundamental principle of English law that Testators should generally be free to leave their Estate to whoever they wish. It is not up to a court to approve or disapprove of what a Testator does, but to satisfy themselves that the Testator knew and intended what they were doing.
For further information please contact Anna Illingworth at Rowberry Morris Solicitors on 0118 9585611