WillsCase Review: Ingram and Whitfield v Abraham 2023

This article will cover an overview of the recent case of Ingram and Whitfield v Abraham [2023] EWHC 1982 (Ch) which concerns a recent challenge on a will on want of knowledge and approval of the testator.

Background – Knowledge and Approval

A testator must have knowledge and approval of the contents of the will at the time of execution, in other words that must have understood the contents of the will. Where the testator has capacity and the will has been executed correctly, there is a presumption that the testator had knowledge and approval of the will. Rebutting this presumption will be on the party arguing the will is invalid.

There is an exception to his presumption if the circumstances surrounding the will “excite the suspicion of the Court”. In such cases, it will be on the party arguing the will is valid to counter this suspicion. The following are examples of cases which the Court may find suspicious:

• A homemade wills
• A will created by a beneficiary
• A will containing spelling mistakes
• A radical change from previous wills without a rational explanation
• Where the relationship between the beneficiary and testator was not close.

As established in the case of Gill v Woodall [2011] Ch 380, the approach of the courts in cases of suspicion is to consider whether the testator understood:

1. what was in the will when they signed it, and
2. what its effect would be.

Facts

Joanne Abraham died on 2 February 2021. She left two adult children, Henrietta and Tom.

In 2008 Joanne executed a will splitting her estate between her two children. In 2019, Joanne’s brother Simon drafted a new will for her using an online template, stating he acted on her instructions. The 2019 will left her residuary estate to Simon and included a gift of her book collection to Simon’s wife. Joanne executed the 2019 will in her home and this was witnessed.

Henrietta and Tom challenged the will on the grounds of lack of knowledge and approval of the contents of the will. The children accepted that the signature on the 2019 will was Joanne’s, but challenged the initials that appeared at the foot of each page which they argued was in stark contrast to her usual way of initialing things. They argued either the authenticity of the will is in doubt or it reflects a state of mind/health which casts doubt on her ability to have understood or approved the will and its contents.

Simon argued that it was a straightforward case of Joanne changing her mind on who she wished to benefit and had good reason for doing so for each child, and that he was simply carrying out her instructions by drafting a clear and simple will that she signed, initialed, read and had read to her and she could not have failed to have understood it.

Decision

Witness evidence from Joanne’s friends weighed in the children’s favour. These stated that it had always been her intention to leave her estate to her children equally and that she would not have kept the 2019 Will a secret from them. These witnesses had either had direct conversations with her or had drawn reasonable inferences from conversations. There was also overwhelming evidence and recordings that this was her intention.

In the mind of the judge HHJ Berkley, there was no doubt that Joanne intended to leave everything to her children and she had given thought to balance out lifetime gifts to them that she had made.

There was clear discrepancy between the initials on the 2019 will and the initials on the 2008 will. Although there had been an 11 year gap, the judge did note that her signature had not changed during this time. It was also noted that one of the witnesses did not see Joanne sign her initials on the will and did not see her read it nor see it being read over to her.

The will contained a spelling error of Joanne’s name. It was noted that the testator was an accomplished wordsmith and an avid reader. It was accepted by the judge that she would have noticed misspellings of her own name if she had been paying attention to the will.

It also weighed against Simon that he failed to produce his own phone and failed to produce Joanne’s phone as evidence. There was also issues with the credibility of his witnesses.

On the balance of probabilities, it was found that Joanne had told Simon that she wanted to leave to him but in the sense of sorting out her estate in accordance with her wishes. There was clear evidence of this intention. A lawyer would have recognised her intentions as the need to create a discretionary trust, but the will did not achieve that and simply gifted to Simon outright.

Simon had failed to discharge suspicions of the Court and pass the test established in Gill v Woodall.  The claim of lack of knowledge and approval was accepted and the 2008 will should instead be admitted to probate.

 

See the judgment here.

 

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