Lack of knowledge and approval

Lack of knowledge and approval

Generally speaking the burden of proving that a Will is valid lies with the person propounding the Will – that is, the person who presents it and wants it to be accepted as valid.

If the testator had capacity and the Will is properly executed in accordance with the requirements of the Wills Act, the fact that the testator knew of and approved its contents will be inferred. However, sometimes additional evidence is required.

One example might be if the person who prepared the Will was also a substantial beneficiary. Such circumstances would “excite the suspicion of the court”; making them more vigilant when looking at the evidence that purports to prove the Will valid. The Court in these circumstances is unlikely to find the Will to be valid unless their suspicions can be removed and this means providing evidence of knowledge and approval in order to show that the Will does represent the wishes of the testator (Barry v Butlin 2 Moo PC 480).

The Court will consider all the relevant evidence available when reaching a decision, drawing such influences as it can from the totality of that material. It must conclude whether or not the burden of establishing knowledge and approval of the contents of the Will has been discharged.

Other circumstances where knowledge and approval needs to be proved include when the testator is blind, deaf or dumb.

The proof will be assessed on the balance of probabilities – that is, whether it is more likely or less likely that the testator had knowledge and approval of the Will. However, the burden of proof will be higher where a higher level of suspicion has been established.