Practical tips for dealing with knowledge and approval of a will

A fundamental requirement for a valid will is that the testator knew and approved its contents. This requirement is part of establishing the testator had the requisite mental capacity. The issue must be proved by any person seeking to propound a will and may also provide an avenue for challenging the will’s validity.

The principles applicable to knowledge and approval are different from the principles governing testamentary capacity. See ‘Practical tips for dealing with testamentary capacity’, 60 The Law Society of NSW Journal, October 2019, 82-83 for a discussion of the principles and issues arising in respect of testamentary capacity. Nevertheless, the evidence on each issue may overlap and it is common for both issues to be raised when there is doubt over a testator’s mental condition.

The test for knowledge and approval

The law requires that ‘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 [47]).

As with testamentary capacity, knowledge and approval are presumed where the will is rational on its face and has been duly executed. The presumption is displaced where the evidence raises a doubt as to whether the testator knew and approved the terms of the will. If so, the person seeking to propound the will must affirmatively prove that the testator knew and approved the contents of the will.

The burden of proof

In Mekhail v Hana [2019] NSWCA 197 at [165] the Court of Appeal confirmed that a ‘staged’ approach, based on onus and presumptions, should not be adopted to determine the validity of a will. Instead, following the English approach summarised in Gill v Woodall [2011] Ch 380, a court should ‘consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition’.

Establishing knowledge and approval

The requirement to establish knowledge and approval is not an arduous one. The authorities have long held that ‘the most satisfactory evidence’ to prove knowledge and approval is evidence the will was read to the testator and that the testator has confirmed that she or he understands and approves it. Whilst this evidence is of substantial weight, it is not conclusive. 

Such evidence is ordinarily given by the solicitor who prepared the will and attended on the testator for its execution. It is not, however, necessary that the evidence is given by the solicitor. Another person present at the meeting, such as a person present to witness the execution, could give such evidence. Alternatively, the conference in which the will is read and explained to the testator could be recorded. 

The quality and extent of the evidence that will be required to prove that the testator knew and approved the contents of the will depends on the circumstances of the testator. For example, if a testator does not read or speak English, evidence will be required to establish the will was correctly translated for the testator.

There is no requirement to prove the testator understands the legal terminology used in the will. It is not necessary to prove the testator read the document or even that she or he was given a comprehensively accurate account of the terms of the will. Instead, it is sufficient to establish knowledge and approval by showing that the testator:

1. knows the document in question is her or his will;
2. correctly assumes how the will deals with her or his property, and
3. gave instructions for a will to be prepared to have that effect.

(See Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J.)

Evidence about the testator’s instructions is critical. Care should be taken to ensure the instructions are comprehensively set out so they can be properly assessed against the terms of the will.

Challenging knowledge and approval 

An assertion that the testator did not know and approve the contents of the will faces two immediate difficulties. 

First, as it is not an arduous burden to establish knowledge and approval, ‘very strong evidence’ is required to set aside a will where there is evidence that a will has been read to the testator. See, for example, Andrew v Fulton (1875) LR 7 HL 448 at 469. In Tobin v Ezekiel (2012) 83 NSWLR 757 at [47], it was said that it was ‘as heavy a burden as can be imagined’.

Second, a party seeking to challenge a will is not likely to have been present when the will was executed. As such, it will ordinarily be the case that a party challenging knowledge and approval will not have any direct evidence of a testator’s lack of knowledge and approval of the terms of the will. 

Accordingly, challenges to knowledge and approval often focus on factors such as the mental acuity and sophistication of the testator; the complexity of the will; the nature and size of the estate; the exclusion of persons naturally having a claim upon the testator’s bounty; the inclusion of persons who would not appear to have a claim on the estate; and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. 

A testator whose cognition is impaired may not have the mental capability to know and approve the contents of the will, or to appreciate the effect of the will. Expert medical evidence then becomes important to prove the medical condition that the testator was suffering and its effects on the testator’s cognition. 

A testator may have testamentary capacity but not have sufficient mental facilities to know and approve the contents of the will (Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [451]). That is because testamentary capacity is a legal conclusion arising from satisfying the four elements specified in Banks v Goodfellow (1870) 5 QBD 549 whereas a testator’s cognition, in the context of a challenge to knowledge and approval, is a medical issue. 

In Hobhouse v Macarthur-Onslow, the testator had made a will at a time when she was suffering from moderate dementia. Despite her dementia, the Court found she had testamentary capacity. Despite the finding of capacity, the Court found the testator suffered from ‘a continuous cognitive 

deficit in relation to her understanding and ability to undertake relatively high level conceptual processes, including a deficit in her ability to understand conceptually complex processes that were not fully and adequately explained to her at the time.’ In circumstances where the will departed from her instructions, the will was executed several months after instructions were given and the testator was only given a ‘cryptic’ explanation for the will departing from her instructions, the Court was not satisfied the testator knew and approved all of the contents of the will. 

A challenge to knowledge and approval based only on the complexity and length of the will or where there is some unusual feature such as the exclusion of a person who would ordinarily be expected to receive a benefit, faces the difficulty that it is sufficient to show that the testator understands that the document is his or her will, correctly assumes how the document deals with her or his property, and gave instructions for the will to that effect. If the terms of the will go beyond the instructions, then the argument gains traction, and these other matters are likely to strengthen a case where the testator’s cognition has been compromised. 

Consequences of lack of knowledge and approval

If the person propounding the will is unable to show the testator knew and approved of any part of the will, the Court will not admit the will to probate (or will revoke a grant already made).

If the Court finds the testator knew and approved of only part of the will, then the Court will excise the parts that were not known and approved (Osborne v Smith (1960) 105 CLR 153 at 159 to 162). If the severance results in the will not reflecting the testamentary intention of the testator, then severance will not be permitted and the will not be admitted to probate (or the grant revoked) (Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [476]). 

Conclusion

The requirement to prove the testator knew and approved the contents of the will, and appreciated the effect of the will, is an aspect of ensuring that a will contains the testator’s real testamentary intentions. The best evidence to prove knowledge and intention is evidence the will was read by or to the testator and that the testator confirmed his or her understanding of its contents and effect. Where such evidence has been given, very strong evidence is required to show the testator did not know and approve the contents of the will. If a testator did not know and approve of parts of the will, those parts will be severed provided that the balance reflects the testator’s intentions.  

David Price is a barrister and mediator at 7th Floor, Wentworth Selborne Chambers.