Most people assume that, once they have signed a will in front of a solicitor, it must be valid and reflects their wishes. While this is usually the case, a recent High Court decision serves as a striking reminder that a will can be set aside, even where the person making the will plainly had the mental capacity to do so, if they genuinely did not know or approve of what it actually said.
What does "knowing and approving" a will mean?
To be valid, a will must be the true expression of the person's wishes. The law calls this "knowledge and approval". In other words, the person must understand and approve the contents of the document they are signing. Normally, if a will has been prepared by a solicitor and correctly signed and witnessed, the court simply presumes that the ‘testator’ (the party committing to a written and executed, legally valid last will and testament) knew what it contained and approved it with a signature.
Such a presumption can however be displaced. Where the circumstances are suspicious in the eyes of the court, the person relying on the will has to prove, clearly and positively, that the deceased really did understand and approve what it contained. Importantly, this issue is separate from mental capacity, as someone can have full capacity to make a will and yet may not have known and approved of a particular provision, especially if it was something they never intended or properly grasped.
An elderly man, aged 92 and living with Parkinson's disease, had made a will in 2012 leaving his estate broadly equally between his second wife and their respective families. After a series of falls, he moved in with his daughter and son-in-law, while his wife remained in the couple's home.
A new solicitor was instructed, and in 2022 the husband signed a very different will. Instead of leaving his wife half his estate outright, it gave her only a "life interest" in that half – the income from it, but not the money itself – with the capital ultimately passing to his daughter.
After his death, that 2022 will was challenged. The Judge found that the husband had not known about or approved the life interest arrangement. The solicitor had introduced a trust structure the client had never asked for and hadn’t adequately explained it. The file note suggested his wife would have "access to" the funds, which the Judge found misleading as, in reality, she could not touch the capital without the daughter's agreement. The departure from the husband’s longstanding intention to leave his wife a half share outright was never properly explained and, at the signing, the will was described as "the same as we discussed" when it was clearly not. As a consequence, the trust wording was struck out, and his wife’s half share was made absolute hers outright, as the earlier will had always intended.
Was this a case of undue influence?
Notably, this was not the finding; the wife's side contended that the will had been altered by pressure from the daughter, yet the Judge dismissed such a claim. In legal terms, undue influence is a serious allegation with a very high threshold, as it requires evidence of coercion that overpowers the person's own free will, and does not merely apply in cases where an opportunistic relative has an ulterior motive or senses a moment to apply influence. Contemporary records showed that the testator expressed his own views clearly and that family members can help an elderly relative in the preparation of a will without that amounting to undue influence.
This case usefully illustrates that claims centred upon "knowledge and approval" can succeed where allegations of undue influence fail. It is, in effect, a middle path: a way of challenging a will that does not reflect the person's true wishes, without having to prove deliberate wrongdoing by anyone.
Implications:
The practical lessons of this ruling are two-edged. For anyone making a will, the message is to insist that it says, in terms you actually understand, what you want to happen and to be wary of the introduction of such sophisticated structures as life interest trusts, especially those introduced late in the day. A trust of that kind, which leaves a loved one only income and not the capital itself, is a very different thing from an outright gift. Accordingly, it should be a deliberate choice, and not come as a surprise.
In summary, this ruling establishes the following:
- It creates a "middle path" which allows claimants to challenge an invalid will without the high burden of proving deliberate wrongdoing or fraud.
- Eliminates the need to find definitive evidence of coercion that overpowers a testator’s free will.
- Confirms a person can have full mental capacity, yet still have their will overturned if they did not grasp specific clauses.
- Forces the person defending a will to positively prove the deceased understood it if "suspicious circumstances" are shown.
- Safeguards a testator’s historical wishes from sudden, unexplained shifts late in life.
- Subjects sudden will updates to intense court scrutiny if they occur after a major lifestyle or health change.
- Highlights the critical, practical difference between giving an outright gift and leaving someone just an income stream.
For families arranging a will for an elderly or unwell relative, the case is a clear warning that vulnerability calls for more care, not less. This should be accompanied by clear explanations, accurate notes, and any significant change from earlier wishes spelt out plainly. A will that quietly departs from what the person always intended may not survive a legal challenge.
Disclaimer: This simplified summary of a UK legal case is for general information only. It is not legal advice, may omit important detail, and may not reflect later developments or appeals. Please read the full judgement and seek professional legal advice before acting.