We have previously written about the validity of Wills and the Testamentary Capacity of Will-makers, and how to challenge a Will through a Family Provisions Claim. Follow the links for more information
The testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator. – Tobin v Ezekiel (2012) 83 NSWLR 757 at , Meagher JA.
Test for Knowledge and Approval
Knowledge and approval are presumed where a Will appears rational and properly-executed. This presumption is displaced by evidence that raises doubt as to whether the testator know or approved of the contents of the Will. The person putting the Will forward must then show that the Testator:
- Knew the document was their Will;
- Understands how the Will deals with their property; and
- Gave instructions for a Will to prepared with that testamentary effect. (Astridge v Pepper  1 NSWR 542 at 548.)
Generally the best proof of knowledge and approval is evidence that the Will was read to the Testator, and that the Testator confirmed their knowledge and understanding of its contents. This evidence is generally given by the solicitor who prepared and witnessed the Will. It could however be provided by another person who saw the Testator execute the Will. Additional evidence may be required if, for example, the Testator does not read or speak English.
Challenging Knowledge and Approval
Claims that Testators lacked knowledge and approval can be difficult:
- Very strong evidence is needed to overturn a Will that has been read to the Testator.
- Often a challenging party will not have been present when the Will was executed.
Accordingly, challenges to knowledge and approval focus on:
- The Testator’s mental capability and sophistication.
- The Will’s complexity.
- The nature and size of the testator’s Estate.
- The Will’s exclusion of persons generally entitled to claim (children, parents, etc.).
- Whether the Testator had an opportunity to reflect, and to obtain independent advice before making the Will.
Consequences of Lack of Knowledge and Approval
If the Testator did not know or approve of any part of the Will (or it cannot be shown that they did), the Supreme Court will not grant Probate (or will revoke a Probate if already made).
If the Testator only knew and approved of parts of the Will, the unknown/unapproved parts will be removed before Probate is granted. If this amendment distorts the Testator’s intentions, then Probate will be refused.
If you have any questions about Wills or Estates, your role as an Executor, or if you want to challenge a Will, contact Greg or Jacqueline on (02) 9687 9322.