Tuesday, March 9, 2021

(Charlotte) Sometimes** complex wills fail for want of knowledge and approval

Previous posts have considered some of the key issues in relation to assessing testamentary capacity. 

Given the complexities with life estates mentioned over recent weeks, one aspect that often arises in this regard is the level of knowledge and approval the willmaker must have of their will. 

This is because the requirement that a willmaker knew and approved of the contents of their will is a separate and distinct requirement for validity to the question of the willmaker’s testamentary capacity. 

In this regard it is accepted that it is not necessary to establish that a willmaker was capable of understanding every clause of the will and its legal effect. 

Rather, it need only be shown that the willmaker understood that they were signing a will and the practical effect of its central clauses, including the gifts of property made. 

As with the assessment of capacity, the amount of evidence required to prove a willmaker understood their will depends on the factual matrix. 

In this context, the case of Hoff v Atherton [2005] WTLR 99 is relevant. 

This case confirmed that a court may require evidence that the effect of the document was explained, that the willmaker did know the extent of their property and comprehended and appreciated the claims on the estate that they should have considered. 

These factors are not considered simply because the court may have doubts as to the willmaker’s capacity to make a will. Rather the focus is on the separate issue of whether the willmaker knew and approved the contents of the will. 

This means that even a willmaker who is held to have full capacity, and was not subject to undue influence (see our previous post that explores this issue), can have probate of their will refused on the basis that the document does not express their true intentions. 

As usual, please contact me if you would like access to any of the content mentioned in this post. 

** for the trainspotters, ‘Charlotte Sometimes’ is a song by the Cure. View hear (sic):