Can you Challenge a Will where the Deceased did not know what he was signing?
It is possible to challenge a will when it is not clear whether the deceased either did not know of the contents of the will, or did not approve them even if they have signed the will. This can be done even where the testator had mental capacity to make the will (and could have understood the contents). However, where the testator had capacity and the will has been properly executed, it will be presumed that they knew and approved of the contents.
In order to challenge a will on these grounds, the challenger has to demonstrate to the Court that there are suspicious circumstances surrounding the making of the will. Once they have shown that, then the person who wants to rely on the will has to prove that the deceased did know and approve of the contents of their will.
It is difficult to say exactly what will excite the suspicion of the Court, but the following are likely to:
– A will which is in English where the deceased was not fluent in the language and where there is no indication that it was translated;
– A will signed by someone who was unable to hold a pen easily (for example because they were in hospital);
– A deathbed will which substantially changes the provision made – particularly if this was made in favour of someone who was with the deceased at the end;
– A will which one or both of the witnesses say they did not sign;
– A will signed by someone who had sight difficulties where there is no indication that the will was read out to them.
– A will prepared by someone who stands to inherit something from it.
There are also circumstances which are unlikely to excite the suspicion of the Court:
– A will which is drafted by a family member who is also a solicitor and who has been in the habit of advising the deceased;
– A will which is signed by someone who has sight difficulties but who can see with help.
The High Court considered this issue in the matter of King v King [2014] EWHC 2827 (Ch). In that case, Mr King changed his will in 2005, leaving everything to his two sons from his first marriage rather than to his wife (as had been the case previously). They had cohabited from the 1960s, but married only shortly before the will was made. Mr King provided that she could live in their home (which was in his sole name) for life.
Mrs King challenged the will, on the grounds that her husband did not know and approve of the contents. Her arguments were based on two main grounds:
1. He has sight problems and could not have read the will, and there was no indication that it had been read over to him – this was not a strong argument because she herself admitted that he could read documents with the aid of a magnifying glass, and the fact that the will did not record that it had been read over did not mean that it had not been; 2. The will had been prepared by a relative of Mr King – this was an unsuccessful argument because the relative was a lawyer who was used to advising Mr King, and who did not take any benefit under the will himself.
The judge in this case decided that these were not circumstances which would arouse the suspicion of the Court, and the will was therefore upheld.
For advice on challenging a will, or defending a challenge to a will, please contact a member of our contentious probate team.