Will set aside for testator's lack of knowledge and approval: a look at the recent case of Ingram & Anor v Abraham

The High Court's decision in the case of Ingram & Anor v Abraham (Re Estate of Joanna Louise Abraham) [2023] EWHC 1982 (Ch) has seen a will overturned for want of knowledge and approval.

The decision is a useful review on the case law for these types of claims.

In our article, we summarise the case and give some useful commentary to help charities faced with a challenge to a will for want of knowledge and approval.

Background

The Claimants were the son and daughter of the testator who were beneficiaries to their mother's 2008 will. The Defendants were the testatrix' brother and sister-in-law. The testatrix' sister-in-law did not actively defend the claim and informed the court she would be bound by the decision of the court. The testatrix' brother thus become the only relevant defendant.

The Claimants accepted that their mother (the testatrix) had signed a new will in 2019, however they argued that their mother lacked knowledge and approval of the contents of the 2019 will due to several factors:

• The suspicious circumstances (i.e., the significant departure from the 2008 will, the fact that the new will bequeathed the whole estate to the testatrix' brother and the only person who was apparently informed of this change was the testatrix' brother himself).
• The use of an online will kit, coordinated by the Defendant.
• The spelling mistake in the testatrix' name.
• Different initialling on the will.

The testatrix' 2008 will left her estate to her children in equal shares. In 2017, the testatrix was diagnosed with terminal cancer. She openly discussed with her family wishing to amend her will in 2019, however the Claimants argued their understanding was that this was to reflect the difference in lifetime gifts the siblings had received and to appoint the Defendant (the testatrix' brother) as executor as the testatrix was no longer close with the executor appointed in her 2008 will. The Defendant's case was that the testatrix had informed him that she wished to amend the Will to benefit him solely, with his wife benefiting should he predecease the testatrix.

The testatrix' son had been recording his mother speaking for sentimental reasons since his mother's terminal diagnosis in 2017. Abstracts of these recordings along with WhatsApp messages and witness statements from the testatrix' friends were provided in support of the Claimants' argument that the testatrix had always intended for them to be the sole beneficiaries of her estate.

The Defendant relied on the witness statement and oral evidence of the lodger that resided at the testatrix' property, as well as WhatsApp messages evidencing the testatrix having arguments with her children at various points in the last few years as evidence. He used this evidence to argue why the testatrix would have wanted to amend her will to the detriment of her children.

Interestingly in oral evidence, the Defendant accepted that the testatrix had not actually given him any reason for not benefiting her children in her amended will. The Defendant claimed he had assumed her reasoning was from previous arguments between the testatrix and her children.

Previous case law

HHJ Berkley gave a useful commentary of the well-known case law in this area, reiterating the approach that practitioners should take when approaching knowledge and approval claims.

Gill v Woodall [2011] Ch 380

Gill v Woodall remains the key case in this area. When considering the relevant case law, the question before the Court is about establishing that the testamentary requirements are satisfied, it is not about assessing the desirability of the result and is not a discretion upon the Court to depart from a valid Will.

Further the judge stated the Court’s view of the morally correct thing to do is irrelevant and must not be taken into account.

Sherrington v Sherrington [2005] EWCA Civ

“it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made”

Simon v Byford [2014] EWCA Civ 280

HHJ Berkleyquoted Fuller v Strum [2002]'…if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.'

After considering the law, HHJ Berkley gave a useful summary on the principle of testamentary freedom, a point that often comes up for charities.

'Testamentary freedom is at the heart of this area of the law. I bear that fully to the forefront of my mind. There is no obligation whatever on a testator to abide by assurances given or promises made during their lifetime or to explain or justify their dispositions'.

In summary

HHJ Berkley found there were 'ample aspects of the background and history...to excite the suspicion of the Court'. The most obvious is the fact that the Defendant produced a will of which he was the sole beneficiary. Instructions were only given verbally, and only to him, over the phone whilst he was driving, and never confirmed in writing other than in the 2019 will itself.

No draft version has ever emerged. He also found there was conflicting evidence as to the steps taken to bring the draft will to the testatrix' attention. The Defendant in his oral evidence referred to the likelihood of concerns about him being “accused” of things in the process of the execution of the 2019 will and yet did not involve a solicitor at any point. HHJ Berkley considered this alongside what he found to be a long and well established and often repeated intention of the testatrix wishing to leave everything to her children.

He had little hesitation in finding that the Defendant failed to discharge the burden of proof to establish that when the testator signed the 2019 will understood: (a) what was in the 2019 will when she signed it; and (b) (more emphatically) what its effect would be.

HHJ Berkley stated that the testator thought the Defendant would inherit her estate to distribute it as per her orally and repeatedly expressed wishes to divide it fairly between her children. He held that the 2008 will should be admitted to probate.

How can we help?

While much weight is given to a correctly executed will, there will be circumstances when the context and history of the situation will give rise to a challenge of its validity based on knowledge and approval. Charites should consider whether the circumstances of the will writing could 'excite the suspicion of the court', and if so whether a defence could discharge the burden of proof that knowledge and approval has been made out.

If you have any questions about a knowledge and approval case, please contact Elizabeth Ware or Chloe Phare.