Incapacity: ensuring you have ‘knowledge and approval’ of your Will

It is becoming increasingly common for disgruntled family members or beneficiaries to challenge a Will on the basis that the deceased had no ‘knowledge and approval’ of the contents of their Will.

In part, this trend aligns with the increased complexity in asset protection and tax effective structures, which testamentary dispositions ought to reflect, but are often misunderstood by well-intentioned testators. Navigating such complexity can be further complicated by the aging process, illness or medication that may influence a person’s cognitive function and decision making.

A Will that is validly signed and follows the formal requirements typically carries a presumption that the testator had knowledge and approval. However, this presumption may be displaced if there are ‘suspicious circumstances’ in connection with the preparation and execution of the Will.

Transcript

Joel Whale

We’re seeing a bit of an uptick in knowledge and approval claims in the Court that relate to Will challenges.

Essentially, it’s an important requirement when making a valid Will that the testator had knowledge of and approved its contents, and this really goes beyond reading the Will or having the Will read to the testator, for example by the solicitor prior to signing, but whether the testator actually understood the terms of their Will and intended to give effect to them.

As you can imagine, lacking testamentary capacity can displace this requirement, so health issues, medication and other factors affecting cognitive function may give rise to doubt as to the testator’s knowledge and approval, and this might be exacerbated by the complexity of the Will itself and its terms. So, it is important to seek professional advice on these matters, as there are ways to manage the risk of a knowledge and approval claim and we do expect these types of claims to continue over time.

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Demonstrating knowledge and approval

Whether a testator knew and approved the contents of their Will goes beyond simply reading the document. Instead, the testator needs to understand the terms of the Will and appreciate 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.^[1]

Having a Will that was professionally prepared by a solicitor is an important first step. However, this step alone may not prevent a ‘knowledge and approval’ claim from arising, where any circumstance creates a well-grounded suspicion or doubt as to whether the Will expresses the mind of the testator.^[2] 

Such circumstances may include their mental capacity and level of sophistication, the complexity of the Will and the estate being disposed of, and the exclusion of natural beneficiaries to an estate (for example, a spouse or child).

It therefore becomes increasingly important to seek professional and independent advice to reduce the risk of an estate dispute. Please contact us if you’re needing assistance with your succession planning or an estate.

[1] Estate Rofe [2021] NSWSC 257 at [148].
[2] Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [46].