Leaving People Out – Lack Of Knowledge And Approval Of The Will’s Contents
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Want to make a start on your will?
Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.
Little need be said about this ground for challenge since the person who writes his own will surely knows and approves of its contents.Generally, lack of knowledge will be pleaded where the testator was blind, deaf or dumb or not a native speaker of the language in which the will was written. Professionally drawn wills contain special attestation clauses to cover such situations.
For example, the will of a blind testator will contain words to show that the will was read over to him before he signed it and that he signified his knowledge and approval of the contents.Where the testator does not speak English very well the will, although written in English, is read to him both in English and in his own language before he signs it. The attestation clause will state this.
Where a testator makes his own will he will, of course, write it in the language he chooses. There is no objection to this but a certified translation will be required when the application for probate is made.
Another situation where this ground of challenge may arise is where the will is drawn up by a beneficiary who takes a substantial benefit under it. This is not to say that a person preparing a will for another can never benefit under it but that a suspicion arises which must be rebutted.
In the case of Barry v Butlin (1838) it was stated that the will should not be upheld unless the suspicion was removed and the court satisfied that the document represented the true wishes of the deceased.
It may be that a testator making his own will cannot be said to lack knowledge of the contents but whether the contents represent what he intended may be open to doubt.In other words, the testator may think he has written one thing but the law reads it quite differently.
Sometimes the meaning may be far from clear. If making your own will it is essential to avoid using legal terms you have seen or heard. You may think you know what they mean but you may be very wrong.
Where the testator’s intent is open to interpretation, the court may be asked to consider the meaning of the will in a construction summons. Although not requiring a construction summons the following is a real-life example of ambiguous wording from a home-made will: ‘I give to the Salvation Army the clothes worn by my dear wife before she departed for paradise hanging in the wardrobe.’
Find out more about – Leaving People Out – Undue Influence Or Fraud or Leaving People Out – Spouse
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