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Knowledge & Approval: The case of Brennan v Prior

View profile for Katie de Swarte
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A testator must have the requisite knowledge and approval when signing their will. The recently reported case of Brennan v Prior is a useful illustration of how the Courts assess claims where a testator lacked knowledge and approval of the contents of their will.

The facts of this case are as follows. The deceased died in March 2011 aged 62. He was survived by four siblings and one illegitimate daughter, Chloe, who was his sole next-of-kin. The deceased and Chloe were close and he was financially generous to her, he was also close to his siblings. Chloe and her aunts and uncles did not have good relationship

In 1999 and 2006 the deceased instructed solicitors to prepare draft wills, however, neither were executed. In January 2011 the deceased learnt his cancer had become terminal and his sister, Anne, prepared a draft will using a home drafting kit.  Two weeks before his death and while in hospital the deceased executed the draft will that Anne had drafted in the presence of his siblings and with his brothers as witnesses.  It was the siblings evidence that the deceased had read through the will and discussed the provisions before signing it.

The will left £100,000 to Chloe, a studio flat in Cannes to his Jacqueline, who had nursed him in his final weeks, in gratitude for her care, and the residue to the four siblings in equal shares absolutely.

Chloe made a claim in that the will was invalid on a number of grounds, including lack of knowledge and approval.

At judgment, Mark Herbert QC, sitting as a Deputy Judge in the Chancery Division, found that that the circumstances were "undoubtedly suspicious", but on the balance of probabilities and taking into account the circumstances of the case it was held that the deceased was likely to have known and approved the contents of his will.  Further, it was held that there was nothing intrinsically irrational in the provisions of the will and it was duly executed by a testator with capacity who knew, in general terms, the will’s effects.

In this case Chloe represented herself with her brother-in-law acting as her McKenzie friend. This case emphasises how seeking representation could have led to a different outcome. This case also reinforces the importance of instructing solicitors to prepare wills especially where there are likely to be disappointed beneficiaries or would-be beneficiaries.

The judgment also provided a useful summary of the applicable principles in respect of Knowledge and Approval:

  • When admitting a will to proof the court must be satisfied that the testator understood what they were doing and its effect so that their testamentary intentions are reflected.  The party seeking to propound the will must 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.
  • 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", for example, where the will was drafted by a person who benefits under it;
  • The party seeking to successfully challenge a will must produce evidence of circumstances which do not satisfy the Court that, on the balance of probabilities, the testator understood its nature and effect, and sanctioned the dispositions it made.

If you have any questions in relation to this area please do not hesitate to contact Natasha Carolan or Katie de Swarte.

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