Testator’s Knowledge and Approval of The Will | Armstrong Legal

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This article was written by Sean Pascoe - Solicitor - Brisbane

Sean Pascoe completed a Bachelor of Business (Finance), a Bachelor of Laws, and a Graduate Diploma of Legal Practice at the Queensland University of Technology. He was admitted to practice in the Queensland Supreme Court in February 2020. Sean’s primary focus is in the area of wills and estates litigation. He also has experience in e-discovery and construction law. In...

Testator’s Knowledge and Approval of The Will


In order for a will to be valid, the testator must have had sufficient mental capacity to make a will at the time the will was executed. If a person’s mind is inhibited from remembering their loved ones or they are not capable of understanding the impacts of a will then any purported will is invalid. Another factor that affects the validity of a will is the will-maker’s knowledge and approval of the contents of the will they have signed. This article deals with the requirement for knowledge and approval of the will.

What Does Knowledge and Approval Mean?

In cases where a will-maker does not know or understand what is in the will they have signed, that will is not valid.

When a testator understands the contents of the will but does not consent to such being their final will, that will is invalid despite being signed.

A person may sign a will they do not approve for many reasons, including duress, fraud or undue influence which may also create other pathways to challenge the will.

Rebuttable Presumption of Knowledge and Approval

There is a rebuttable presumption that a will-maker had knowledge and approval of the contents of their will. If there is evidence to the contrary, the presumption may be rebutted.

The court will presume that a testator’s necessary knowledge and approval is evidenced by the fact that the will has been formally signed and executed in compliance with the relevant laws. However, this is not conclusive evidence.

Burden of Proof

Where there is a dispute about whether a will-maker had knowledge and approval of their will, it is up to the party seeking to have the will invalidated to prove that the testator did not have knowledge and approval.

This is different from the situation where a dispute arises about a testator’s capacity, where the onus is on the person seeking to rely on the will to prove that the testator had capacity at the time the will was made. However, the burden of proof in matters involving a testator’s knowledge and approval is subject to the suspicious circumstances rule.

The suspicious circumstances rule provides that where there are any suspicious circumstances surrounding the procurement of a will, the court must thoroughly investigate the available evidence of the circumstances to be satisfied the will is valid and not poisoned by undue influence, fraud, lack of capacity or lack of knowledge.

Overlap with testamentary capacity

In many cases, there is significant overlap between the concepts of testamentary capacity and knowledge and approval. Certain disabilities may result in a lack of testamentary capacity as per the test in Banks v Goodfellow. This may also mean the testator is not able to understand the contents of the will.

Certain conditions may not be so severe that the testator is deemed not to have capacity but the will may nonetheless be found to be invalid because the testator did not adequately understand the will. A skilled lawyer may be able to carefully ask questions and explain things in an inclusive manner enabling a person to make a will despite some difficulties.

Every situation is different and whether or not the court will uphold a will depends on the whole of the circumstances.

Knowledge and Approval of Expert Drafting

Wills can be complicated instruments, particularly where there are a lot of assets or beneficiaries or where the testator wishes to create trusts to protect their loved ones’ interests in the future. As such, many people rely on the services of lawyers to draft the will in technically correct language that gives effect to their expressed intentions. Nonetheless, sometimes mistakes are made.

Generally, courts will presume that the testator had knowledge and approval of the will drafted by a lawyer based on their instructions. However, if there is evidence of some mistake, such as an accidental inclusion or omission, the will may be challenged on the basis that the testator did not have knowledge and approval of all the contents of the will.

Examples

The following are examples of situations where a testator would have testamentary capacity, but would not have  knowledge and approval of a will’s contents:

  • The will-maker is illiterate, and the will was only shown to them, not read aloud;
  • The will-maker signed the wrong will;
  • The will-maker did not know the document they were signing was a will;
  • The will-maker did not understand the legal effect of the will;
  • The will-maker was never sent a copy of the will and never read it.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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