A will dispute in the High Court concerning an illiterate testator has received a lot of media attention recently. The deceased’s three eldest children are said to be contesting his will on the basis that it was a mistake that they had been disinherited because their father could not have read his will.
One of the criteria for a valid will is that the testator (i.e. the person making the will) knows the content of the will and approves it. If a will is signed then there is a general presumption of knowledge and approval but if there are believed to be suspicious circumstances around the execution of the will this presumption will not apply and the court will scrutinise the circumstances around the making of the will. Suspicious circumstances might include:
- Where the person who prepared the will is a beneficiary under it;
- The testator is deaf, blind, illiterate or of limited intelligence;
- The terms of the will directly contradict known wishes and relationships held by the testator.
The difficulty with an illiterate testator is that they cannot read a will, so it must be clear that the will was read to them, to enable them to approve the contents.
In the High Court case referred to above it is reported that the father had an interest in two properties, a home from his first marriage which he shared with his first wife and three children (and retained an interest in after separation) and a second home he shared with his second wife and two further children. The result of the last will the deceased made is that he disinherited his eldest three children, and his entire estate, including an interest in their family home, passed to his second wife. The children dispute the will as invalid and say that his estate should pass under the intestacy rules.
The issue of an illiterate testator has been considered by the court previously, in the case of Reeves v Drew & Ors [2022] EWHC 159 (Ch). This case concerned two wills of a father, one made in 2012 and a second will executed in 2014 which was vastly different to the will executed in 2012, and left his daughter the majority of the estate. His daughter issued a claim for the 2014 will to be upheld, and the court considered whether the testator knew and approved the contents of the 2014 will, including the issue of the testator’s literacy, as well as whether the 2014 will was executed as a result of undue influence. The court considered the testator’s literacy and found he was illiterate, and that there was no proof that he read the will or that it was read to him. The court ultimately decided they were not satisfied the testator had read or approved the contents of the 2014 will, and therefore declared it invalid. For more information about this case see our blog here.
The court will consider the specific circumstances of each case individually to decide whether knowledge and approval is present. When there is an illiterate testator the court will specifically consider any evidence of the will being read to them and the testator understanding the contents of the will. It is therefore extremely important when a testator is illiterate that contemporaneous records are kept to show how the will was explained and read to them, and how they demonstrated an understanding and approval of the will.
Should a will challenge be successful on the grounds of lack of knowledge and approval, the will will be declared invalid. The High Court case referred to above continues, and it will be interesting to read the judgment and understand how the judge grapples with the issues of illiteracy
