The requirement for a testator to know and approve the content of their Will is really an extension of the initial requirement to have testamentary intention at the time the Will is made. They must know they are signing a Will but they must also approve its content in order to prevent a Will dispute.
Therefore, even if a testator has complied with the correct formalities to create a Will and has capacity, it is still possible to contest a Will and have it declared invalid for lack of want and knowledge. If there are any questionable or suspicious parts of the Will, then the Court will need to satisfy themselves that the testator knew and approved the content of the same.
Examples of suspicious circumstances could include:
- Where the Solicitor was contacted by or instructed by someone other than the Deceased.
- The Will was not drafted by someone independent.
- The Will is very different to previous Wills or expressed intentions and such different provisions cannot be explained by a change in the deceased’s family or social circumstances.
- Where features of the Will are out of character based on the evidence.
- Where the deceased suffered some mental impairment, although not enough to cause incapacity.
- Failure to provide the Deceased with a copy of the Will after drafting or execution.
- Failure to disclosure the Will after a request or within a reasonable amount of time.
- Where the Will was prepared by a Solicitor not local to the testator and the Will was witnessed by friends of the beneficiary but not known to the testator.
- The will was not read over prior to being signed.
- Failure to inform close relatives after the Deceased’s death.
- Where the file notes of a Solicitor do not correspond with the content of the Will.
- Where a questionnaire or notes completed by the testator does not correspond to the content of the Will.
Some of these factors alone may be enough to show suspicion, in other circumstances, a combination of these factors will arouse suspicion.
Once suspicion is established, the burden of proof in these cases is shifted to the person trying to prove the Will. They must show that the testator did know and approve the content of the Will in order to prevent a successful inheritance dispute.
If you believe that there are suspicious circumstances surrounding a Will and wish to challenge a Will on grounds of validity then please contact our team in order to discuss your Will dispute.