Contested Probate: When Reading Over is Not Enough -The How, What and When Knowledge and Approval in Estate Litigation By Angela Cornford-Scott Cornford-Scott Lawyers
There appears to be an increasing number of will disputes, particularly involving situations where there is a question around the circumstances surrounding the instructions for and execution of the will. The creation of testamentary and enduring documents which might benefit one person over and above others, usually result in allegations that the person was influenced into making the documents, or that they did simply not understand or approve of the terms of the documents. As advisers, it is important for us to understand what cause of action arises from such circumstances and whether the allegations of invalidity are based on incapacity, want of knowledge and approval or undue influence. This paper focuses on issues arising where the claim is based on want of knowledge and approval. What is knowledge and approval Knowledge and approval was described by McMillan J in Vukotic v Vukotic (2013) 12 ASTLR know the substantive The historical principle was enunciated by Brereton J in Tobin v Ezekiel, Estate of Lily Ezekiel [2011] NSWSC 81 as follows "In my view, however, (1) the concept of "knowledge and approval" is concerned with the contents of the will, and whether they express the testator's intention, and not with the process by which the testamentary intention was formed; (2) any relevant suspicion must be one that casts doubt on whether the testator knew and approved the contents, and must relate to the preparation and execution of the will, and (3) suspicion of fraud or undue influence does not attract the "suspicious circumstances" doctrine, those being affirmative defences which assume that the testator knew and approved the contents (in the sense that he or she intended to make a will in the form in which it was made) but challenge how that intention was procured. That the concept of "knowledge and approval" is concerned with the contents of the will, and that the relevant suspicion must be one that they do not accord with the testator's intention, appears from many authoritative statements of what a proponent must prove when suspicious circumstances are raised. In Atter v Atkinson (1869) LR 1 P&D 665, Lord Penzance said (at 668) that where the maker of a will takes a large benefit "You ought to be well-satisfied, from evidence, calculated to exclude all doubt, that the Testator not only
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