The recently reported case of Brennan v Prior provides a useful illustration of how the Courts assess claims that a testator lacked knowledge of, or did not approve, the contents of his or her Will. This briefing summarises the test the Court will apply, before turning to the facts of the case.
Knowledge and approval – a summary of the rules
The judgment provides a useful summary of the applicable principles:
- To admit a Will to proof, the court must be satisfied that the testator understood what he was doing and its effect so that the document represents his testamentary intentions. It is for the party seeking to propound the Will to show that the testator understood his Will.
- Where a Will was executed in accordance with the formalities set out in section 9 of the Wills Act 1837 by a person with testamentary capacity there is usually a presumption the testator knew and approved its contents. Further, a "very strong" presumption exists where the Will was prepared by a solicitor and read over to the testator before execution.
- A party seeking to propound a Will may not be able to rely simply on due execution and capacity where the circumstances surrounding its preparation or execution "excite the suspicion of the Court" – where, for instance, the Will was drafted by a person who benefits under it, or contains complex provisions which the testator was unlikely to understand.
- A party seeking successfully to challenge a Will must produce evidence of circumstances which leaves the Court not satisfied that, on the balance of probabilities, the testator understood its nature and effect, and sanctioned the dispositions it made.
- As a matter of policy, the Court is cautious about accepting such challenges. Wills frequently give rise to feelings of disappointment for would-be beneficiaries which can lead to contentions that the Will did not reflect the testator's true wishes. If judges were too ready to accept such contentions the principle of testamentary freedom could be undermined.
The facts of the case
- François Devillebichot, the son of a French diplomat, died on 3 March 2011 aged 62. He was survived by four siblings and one illegitimate daughter, Chloe, his sole next-of-kin. The relationship between Chloe and her uncles and aunts was described as one of mutual estrangement and immense suspicion.
- François was close to Chloe and financially generous to her for most of his life. Chloe claimed François had reassured her that she would inherit his Estate. François appears to have had good relationships with his siblings. His sister Jacqueline nursed him in the final weeks of his life.
- François had, in 1999 and 2006, instructed solicitors to prepare draft Wills for him, but neither had been executed. When his health began to decline as a result of cancer in 2009, François' surgeon encouraged him to put his affairs in order. As a result his sister, Anne, entered into discussions with him about how he would like to leave his Estate. In January 2011, when François learnt his cancer had become terminal, Anne prepared a draft Will using a pack she purchased from a stationery shop.
- On 19 February 2011, two weeks before his death, while in hospital and in the presence of his siblings, François was given the draft Will, which he then executed in the presence of his two brothers who acted as witnesses. The brothers' evidence was that François read through the Will and discussed its main provisions with them before signing and dating it.
- The Will left £100,000 to Chloe, a studio flat in Cannes to Jacqueline in gratitude for her care, and the residue to the four siblings in equal shares absolutely. Perhaps inevitably, Chloe formed the view that the Will was invalid on a number of grounds, including lack of knowledge and approval.
- This claim was supported by Chloe's assertions that the testator knew French succession law and would therefore have known that he could not leave the Cannes flat solely to his sister, ignoring Chloe's forced heirship rights, and that he had intended his Estate to pass to her under the intestacy rules.
Mark Herbert QC, sitting as a Deputy Judge in the Chancery Division, found that:
- The circumstances were "undoubtedly suspicious", but on the balance of probabilities and taking into account the circumstances of the case François was likely to have known and approved the contents of the Will.
- François knew he had left Chloe £100,000, which he regarded as enough, Jacqueline the Cannes flat, his siblings the residuary estate. There was nothing intrinsically irrational in the provisions of the Will, it was duly executed by a testator with capacity, and the evidence was that François knew, in general terms, its effects.
- The siblings did not need to show that François appreciated all the ramifications of the Will – either the "huge" effect it would have on Chloe or the legal ramifications of the legacy of the Cannes flat. "The law does not require a testator to be shown to have knowledge and approval of every effect and consequence of his Will".
A number of lessons can be learnt from the case:
- Chloe appeared in person, with her brother-in-law acting as her McKenzie friend. Had she been represented the result might have been different. Mark Herbert QC made reference, for instance, to Chloe's failure to challenge in cross-examination assertions made by the siblings.
- The case reinforces the importance of engaging solicitors to prepare Wills especially where there are likely to be disappointed beneficiaries or would-be beneficiaries. François' brother, a magistrate, was criticised for not advising François to do so in the circumstances.
- Interestingly, if a solicitor had been engaged they might not have needed to explain the impact of French forced heirship rules for the test of knowledge and approval to have been satisfied (though a negligence claim might follow such an omission).
- Where a person believes a Will does not carry out the testator's intention, they might be better served applying for rectification. Because of limitation considerations, advice should be sought quickly on any such claim.
Mark Herbert QC noted that "much has been written over the years after some apparently confusing principles in this part of the law" – his judgment (together with other recent cases) has provided useful clarification.
Adam Carvalho is an associate, and Caroline Pearce is a trainee, in the Contentious Trusts & Estates team at Farrer & Co.
If you require further information on anything covered in this briefing please contact Adam Carvalho (email@example.com; 020 3375 7170) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Disputes page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2014
Contested Wills Brennan v Knowledge.pdf202kB