Spotlight: Sharp v Hutchins

What’s happened?

The High Court has upheld a 2013 will of an elderly bachelor, Ronald Butcher, in which he left his entire £472,000 estate to a local builder who he had befriended a few years before his death. This left the beneficiaries of an earlier will of Mr Butcher’s – who had expected to receive a share of Mr Butcher’s estate – disappointed.

Mr Butcher died in March 2013, aged 75. He did not have any close relatives, but had in 2011 executed a will, leaving his estate in equal shares to his cousin and two children of Mr Butcher’s close school friend. The defendants were the beneficiaries of Mr Butcher’s estate under the 2011 will, and challenged the 2013 will on the grounds of want of knowledge and approval on the part of Mr Butcher.

The judge, Lesley Anderson QC, concluded that she was ‘satisfied that the 2013 will was executed with the knowledge and approval of Mr Butcher and that he intended it to give effect to his testamentary wishes’, and pronounced the 2013 will.

Why is it important?

The judgment is an important analysis of the Gill v Woodall [2011] Ch 380 test for knowledge and approval cases, the circumstances in which the court requires an executor to adduce affirming evidence of knowledge and approval, and the extent to which the old two-stage test remains relevant.

How does it fit into existing law and practice?

It is often the case that the issue of knowledge and approval is raised alongside concerns about a testator’s capacity. In this case, Mr Butcher’s testamentary capacity was not in dispute. Ordinarily, proof of testamentary capacity and valid execution (in accordance with section 9 of the Wills Act 1837) is sufficient to establish knowledge and approval, which is then assumed.

However, where the circumstances relevant to the preparation and execution of a will are suspicious, the person wishing to rely on a will must produce affirmative evidence sufficient to prove knowledge and approval. In Simon v Byford  [2014] EWCA Civ 280, Lord Justice Lewison commented that when the court is looking at the issue of knowledge and approval, what it is looking for ‘is actual knowledge and approval of the contents of the will … [which] requires no more than the ability to understand and approve choices that have already been made’.

Judge Anderson was required to consider whether Mr Butcher understood (a) what was actually in the 2013 will when he executed it, and (b) what the effect of the 2013 will would be (the two-stage test). She found there was nothing suspicious about the preparation and execution of the will, and that on balance held that Mr Butcher did understand what was in the 2013 will and what its effect would be.

The judge gave several reasons for this belief:

• the fact that the 2013 will was validly executed and Mr Butcher had capacity gave rise to a strong inference of knowledge and belief;
• even though the 2013 will was homemade, it was consistent with the form of several other homemade wills Mr Butcher had prepared in the past;
• Mr Butcher was ‘an educated man, with full capacity who had drawn up previous wills’;
• the 2013 will was short and easy to understand, and was ready by Mr Butcher;
• the claimant was a friend who was kind to Mr Butcher and visited him regularly; and
• Mr Butcher knew he was executing a new will, and had asked two people to witness its execution.

In what ways does this affect practitioners?

Typically, want of knowledge and approval claims are more likely to succeed when there is a combination of different suspicious factors – for example, homemade wills, the involvement of the beneficiary, spelling mistakes, and/or irrational dispositions, and where witnesses are not independent.

It is a fundamental principle of English law that testators should generally be free to leave their estate to whoever they wish. It is clear that the court is ‘not engaged in some form of approval or disapproval’ in relation to a testator’s testamentary intentions, although the court will be more interested if the testamentary provisions appear irrational.

What if anything, should I be doing differently as a result?

The case reminds us that, for disappointed beneficiaries, challenging a will on the grounds of want of knowledge and approval is not straightforward, and requires more than a testator behaving unexpectedly in how they choose to distribute their estate under their will. Clients need to be made aware of this.