Lack of want of knowledge and approval - Is the will valid?

The claim

Mr John Williams (“John”) died on 27 September 2017, aged 91 years. He was survived by his four sons, Timothy, Richard, Thomas and William, who were the claimant and three of the defendants to the claim, the fourth defendant being Richard’s wife, Susan.

On 21 July 2014 John purported to execute a will (“the 2014 will”) and a side letter at the offices at Harding Evans, solicitors in Newport instructed by John for the purposes of preparing a new will for him.

In the proceedings, Timothy asked the court to pronounce against the validity of the 2014 will on the grounds that John lacked knowledge and approval of its contents, and to propound in favour of an earlier will dated 5 October 1990 (“the 1990 will”).

Thomas supported Timothy’s claim and gave evidence to the court in support of the claim. William did not contest the claim and did not take any part in the proceedings. Richard and Susan both contested the claim and asked the court to pronounce in favour of the 2014 will.

The law

The relevant law was quite straight forward – a party who is propounding a will must prove that the testator knew and approved its contents at the time he signed it. In the ordinary case, knowledge and approval will be inferred from the facts that the testator had testamentary capacity and that the will was duly executed. In other cases, however, something in the circumstances will raise a suspicion in the mind of the court and more will be required before the burden is held to have been discharged.

The farm

John was the owner of Little Cwmdowlais Farm which comprised a farmhouse, farm buildings, agricultural land and woodland (“the farm”). At the time of his death, he lived at the farmhouse with Richard and Susan. Richard had worked on the farm since he was a teenager and over the years had made a significant contribution to it in terms of financial assistance as well as labour. He had lived at the farmhouse nearly all his life.

In December 1979 a deed of partnership was executed between John, Richard and Thomas in respect of the carrying on of the business of farmers at the farm. Thomas retired from the partnership in 2014 but John and Richard continued to retain an active involvement in the running of the farm, although once he reached 70 years of age John could no longer undertake the physical work and his contribution was limited to the business side of things. The farm was by far the most significant asset in John’s estate, the gross valuation of the estate for tax purposes being some £930,000.00, of which £700,000.00 was the value of the farm.

John’s wills

On 4 May 1980 following his separation from his wife, John made a will (“the 1980 will)” that provided for the farm to be left to his four sons equally and for his share in the partnership to be left to those of his sons who were still farming in partnership with him at the date of his death.

On 5 October 1990 he made a new will (“the 1990 will”). By that will he gave all his share and interest in the farming partnership to Richard. The will made it clear that the land, farmhouse and buildings known as Little Cwmdowlais Farm were not to be treated as an asset of the said partnership. These were to form part of John’s residuary estate which was to be divided equally between the four sons, although there was an additional clause which gave Richard an option to purchase the farmhouse and related land and buildings for a period of ten years immediately following John’s death.

In 2014 John then made another will. He had initially provided instructions to prepare a new will to the secretary of the head of the wills and probate department, Tracy Gillard (“Tracy”) at a meeting 19 May 2014. Tracy’s typed attendance note prepared after the meeting from handwritten notes that she had taken during the meeting, recorded that though aged 88 years and physically frail John was “fairly bright and talkative” and “appeared to have a very good idea of the assets comprising his estate and what he wanted to do with them”. She also recorded that she had “no doubts as to his testamentary capacity”. The remainder of her attendance note then recorded John’s specific instructions, details of the intended beneficiaries and his assets. John had also prepared his own handwritten note which gave details of his family, their addresses and a brief summary of the partnership. Briefly, his instructions were that Richard was to receive the agricultural tenancy and a 62.5% share in the farm (which was to form part of the residuary estate) with the other brothers each receiving a 12.5% share. Richard was also to be given the opportunity to purchase the other brothers’ shares within a five year period immediately following John’s death.

Subsequently, the matter was transferred to Amanda Campbell (“Amanda”) who at the time was employed as a paralegal. She had a telephone call with John on 18 June 2014 to clarify some of his instructions. Amanda recorded that conversation in a typed file note that she prepared after the conversation took place. Importantly, the file note recorded (amongst other things) that John owned the farm but that he let it out under the terms of a partnership which he operated with Richard. He confirmed that he wanted to give his share in the partnership to Richard as well as leaving the farm to him. These instructions differed significantly from the instructions John had given to Tracy insofar as they concerned the farm. The instructions meant that Richard would inherit the farm outright and whilst the other brothers would still receive 12.5% of the residuary estate as the farm was not to form part of the residuary estate this effectively amounted to nothing.

On 19 June 2014 Amanda sent a draft of the will and side letter to John with a covering letter. The side letter set out John’s reasons for choosing to leave a larger share of the residuary estate to Richard. She then had a further telephone conversation with John on 25 June 2014 when he confirmed that the draft will received was okay, subject to a minor amendment as regards the address of the farm. A typed attendance note prepared by Amanda went on to record that John understood that if this will took effect he would be leaving the farm as well as his share in the partnership to Richard, although he indicated he wanted to revise the partnership agreement. 

On 21 July 2014 John then attended at the solicitors’ offices and met with Amanda when he duly executed the will in the presence of Amanda and Tracy who both then witnessed the same. A typed file note of the meeting confirmed that although physically frail John “knew exactly what he was doing” and that although Richard had been present at this meeting this had been at John’s insistence and after Amanda had explained that the meeting should be confidential. The attendance note recorded that she was confident John’s instructions were his own and that he knew what it was he wanted to do. It also noted that John understood everything that was in his will.

The trial

At the trial as well as hearing evidence from Amanda confirming the circumstances leading up to the execution of the 2014 will, the court heard evidence from Timothy that in about August 2014 at a visit to see his father at the farm John (in the presence of Richard and Susan) told him he had decided to reward Richard for the effort and time he had put into the farm business by increasing his share in the farm to 62.5% with the other brothers sharing equally in the remaining 37.5%. Timothy told the court that his father went on to tell him that he expected Richard to find money to buy out his brothers’ shares by selling another property which he owned, Hill Farm which adjoined the farm and which Richard had been left by its previous owner. Timothy said he told his father that he would make sure he told Thomas and William what he had said. Timothy went on to tell the court that he did subsequently speak to Thomas and told him that they and William would each receive 12.5% of the value of the farm and that Richard would sell Hill Farm to enable him to buy out their shares.

Richard and Susan both denied having been present when the conversation between John and Timothy took place. Richard went on to say that at some point after the visit his father had told him that he had shown a copy of his will to Timothy (a fact which was denied by Timothy) who had left with a big grin on his face. Richard said his father had remarked that he would not be surprised if Timothy contested the will. Susan also stated that a day or two after the visit John had told her and Richard that he had shown a copy of the will to Timothy.

Judge’s findings

Having heard the evidence and considered the contemporaneous documentation of the various discussions and meetings between John and the solicitors, the judge stated that he had reached the clear conclusion that John did not have knowledge and approval of the contents of the 2014 will and that he had seriously misunderstood its provisions in that he did not appreciate the farm was not part of the residuary estate and would go entirely to Richard. Several factors, said the judge indicated and together compelled his conclusion:

1. The 2014 will does not accord with the instructions given to Tracy in May 2014. Of course, his thoughts might have developed in the following month but the judge considered one might be cautious before drawing that conclusion. To deprive his other sons of nearly all the benefit they would receive was in the judge’s view a very significant alteration.
2. John did not contact the solicitors to tell them he had changed his mind. The supposed change of instructions came about in a telephone call made by Amanda without appointment or warning. As John had been unprepared for the call and had already given detailed instructions, the potential for misunderstanding or confusion ought to have been obvious.
3. The judge found as fact that Amanda did not go through the instructions as recorded by Tracy with John when she spoke to him on the telephone. The file note did not record that she went through the instructions as recorded by Tracy.
4. There was obvious room for confusion as to the testator’s intentions regarding the farm. John did not tell Amanda that he wanted to change his mind about the farm and the file note does not record that he said he had changed his mind. In addition, Amanda did not tell John that the instructions he gave her (as she understood them) were different from those recorded by Tracy. She did not seek to address the effect of his instructions on the residuary gift and the file note did not even contain any mention that she had pointed out the difference to John or asked him about it.
5. The judge found that the 2014 will was not read to John on the occasion when he signed it. The file note did not record that the will was read to him before being executed. If it had been read out the judge considered it would probably have been recorded on the file note.
6. Although capable of being implemented, the 2014 will made little practical sense. The provision for precise shares of the residuary estate (62.5% + 3 x 12.5%) made good sense on the instructions recorded by Tracy because the farm was part of the residuary estate but in the 2014 it did not as there was nothing identifiable in the residuary estate.

The conclusions that appeared reasonable in respect of John’s conversation with Timothy in August 2014 confirm that he understood the 2014 will provided for Richard to receive 62.5% of the farm.

Judgment

Having found that John did not have knowledge and approval of the 2014 will the judge then had to turn his attention to what order to make. Counsel for Timothy invited the judge to simply pronounce against the 2014 will on the basis that the parties could then reach a solution that would accord with John’s actual wishes. William took no part in the proceedings but there was no indication that he wished to stand on his rights.

As for Richard and Susan, their counsel submitted that the proper course would be to pronounce in favour of the 2014 will subject to the exclusion of the words that caused it to depart from John’s testamentary intentions. The effect of the omission of the offending words would be to place the farm in the residuary estate. This would mean, save for the fact that the 5 year option to buy would not be included, the will would then accord with the instructions given by John to Tracy.

The judge recognised that such a scenario would not be ideal, not least because the five year option could not be introduced into the 2014 will by this method but he considered in practice that was unlikely to represent a major problem because the other sons would probably realise their interests in the farm by selling them to Richard. Accordingly, the judge propounded in favour of the 2014 will but subject to the exclusion of the offending words in clause 5.

Conclusion

This case is a rare example where the court has held that the testator did not know and approve of the contents of his will despite it being prepared by a professional will writer. The position may well have been different if Amanda had followed best practice procedure and read over the contents of the will to John before he signed it or at the very least discussed the changes in his instructions (as she understood them) with him before the will was executed.

Had either of these events occurred, it may have been that John would have realised that the will did not reflect his testamentary intentions and it could have been amended to correct the position, thereby avoiding the need for the unnecessary and no doubt expensive litigation that the parties had to undertake.