Invalid Will of an illiterate testator - Lack of knowledge and approval

In 2023  the High Court held  a clause of the Will of an illiterate testator as invalid. As a result, most of his estate will pass under the intestacy rules rather than to his chosen beneficiaries. The Court decided that the testator could not fully understand his Will and its consequences.

The Background

The claim was brought before the Court by the deceased's three legitimate adult children against their father’s  partner of 40 years. The deceased owned two properties, one with his wife as beneficial joint tenants and the second one with his long-term partner as beneficial tenants in common.

In the disputed Will, he left his share of his and his partner's residence to his partner for life and, on her death, to their two children and her child from the previous relationship. The remainder of his estate was left to the three children raised by the testator and his partner.

The testator's wife died before him, and  after he executed the disputed Will. Consequently, their former marital home passed to him under the survivorship rules and formed part of his estate, leaving his three legitimate children with nothing.

The successful Claimants argued  that the testator believed that the former family home would pass to his wife and, on her death, to their three children. Therefore, he could not understand that he may be disinheriting them in the event his wife were to die first. And the Court agreed.

The Test

Before the Will is submitted to probate, the Court must be satisfied, amongst other things, that the testator knew and approved the document's contents when he signed it (as a general rule).

In most cases, when there are no questions around the testator's capacity and the Will is duly executed, the question of knowledge and approval would not arise. However, where the beneficiary of the Will prepares it, or the testator is deaf, illiterate or blind, the Court may require further evidence, and the claims of the Will's validity based on the lack of knowledge and approval are more likely to be submitted.

Practical points

It is, therefore, important that the will-making process is adapted to the abilities of the testator. The Will draftsmen should take time to fully understand the testator's circumstances, his wishes and the reasoning behind the instructions and advise on its consequences. In cases like the one described above, it is also important to ensure that additional steps are taken, such as reading the Will out to the testator before its execution with no one else present apart from the testator, the Will draftsman and an independent witness. The attestation clause should reflect this. Any questions should be addressed before the Will is signed and comprehensive notes made on the file throughout the matter.

The separate issue is that more complex relationships exist in quickly evolving family structures and models. Therefore, special care should be taken when advising and drafting the Wills to ensure validity and to protect the testators and their chosen beneficiaries.

If you would like to put a Will in place or review your existing one, our Private Client Team would be happy to help. If, on the other hand, you feel that the Will of your deceased's loved one does not reflect their wishes, our Litigation team would be pleased to advise you on the best course of action.