03 November, 2023
The High Court has recently found that an illiterate testator did not understand the effect of a Will he signed was to disinherit three children of his first marriage.
Kenneth Grizzle left a Will gifting his full estate to his second wife. The children had always been told that he would like their stepmother to live in the family home but that it would ultimately pass to them on her passing. The Will did not reflect this.
The three children challenged the validity of the Will which if successful meant that the estate should pass under intestacy rules.
A person must know and approve of the content of their Will otherwise it is invalid. Where someone possesses capacity and their Will is executed in compliance with the legal formalities, there is a presumption that they knew and approved the contents of their Will. However, the court will require positive proof that the deceased knew and approved the contents of their Will in certain circumstances such as for example if the deceased was blind or if a beneficiary has been involved in the preparation of the Will. Once the suspicion of the court is excited, it is for those who wish to rely upon the Will to prove that the deceased knew and approved the contents of the Will.
In this case, the children argued that the general presumption did not apply as there existed s suspicious circumstances around execution of their fathers Will, including illiteracy and limited intelligence.
On the illiteracy point, the children's evidence was that their father never read them bedtime stories as children and dictated Christmas cards because he had always struggled with reading.
They went on to say that their father had always wanted them to have the family home when he died and so, it followed that he must have believed that was the effect of the Will but was mistaken because he could not read well enough to understand its terms.
The children's stepmother argued that by the time he made the Will, the Deceased could read, having taken lessons in the 1990s. She pointed out that he had sent text messages and was able to read newspapers.
The Judge found that, although the Deceased's literacy had improved over the years, he could not have understood the Will that he signed without help. He went on to say that the Deceased was not a sophisticated reader and whilst he had a "sharp mind and good memory", he would not have been able to understand the will and its legal consequences without assistance. It was found that there was no evidence of the will being read to the Deceased.
The effect of the judge's ruling was the clause leaving the residue of the estate to the stepmother was invalid, meaning the deceased died partially intestate. His five children would now receive an equal share of the £550,000 residue.
The case highlights the importance of keeping clear records generally, but particularly when the testator is illiterate or of low intelligence, the Will draftsman should note carefully that the Will was explained and read to them, in demonstrating they understood and approved its contents.
If you are concerned about the validity of a loved one's Last Will, then please get in touch with one of our experienced solicitors, who will be happy to assist.
For more information contact Lucy Scurfield in our Contesting a Will department via email or phone on 01772 220 152. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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