Knowledge and Approval Flashcards
What is knowledge and approval in the context of wills?
The testator must:
• Have a general intention to create a testamentary document
• Have a specific intention to make the particular will they sign
• Know and approve the contents and understand their choices
A testator can have capacity but still lack knowledge and approval.
When must knowledge and approval be present?
At the time of execution of the will, unless the Parker v Felgate exception applies.
What is the Parker v Felgate exception?
Knowledge and approval can be presumed if the testator:
• Had capacity when giving instructions
• The will was prepared accordingly
• At execution, understood they were signing the same will
When is there no presumption of knowledge and approval?
• If testator is blind or illiterate
• Will signed on their behalf
• Suspicious circumstances (e.g., drafted by beneficiary)
What is an affidavit of knowledge and approval?
If no presumption applies and the attestation clause is insufficient, an affidavit must be submitted with the will for probate.
How can risks related to knowledge and approval be mitigated?
By using an attestation clause explaining steps taken to ensure the testator understood the document.
What is an example of an attestation clause for a non-English-speaking testator?
“Signed by A (who understands Turkish but cannot read English) in the presence of both of us… after the will had been read aloud… and accurately translated by B… when A seemed thoroughly to understand and approve the contents.”
What happens if undue influence or duress is proven?
The will, or part of it, is invalid.
Can undue influence affect only part of a will?
Yes. A specific gift may be removed if it resulted from undue influence. The court cannot add or substitute words.
What constitutes undue influence?
• Coercion against the testator’s judgment
• Pressure the testator could not resist
• Beyond mere persuasion
Is there a presumption of undue influence in wills?
No, there is no automatic presumption of undue influence in testamentary dispositions.
Who has the burden of proving undue influence?
The person challenging the will must prove undue influence occurred.
How does a testator’s physical and mental condition affect undue influence?
A weak or ill testator may be more susceptible to coercion, making them more likely to give in for a quiet life.
