Franks v Sinclair & Ors

Where a will is duly executed by a testator with testamentary capacity, knowledge and approval are ordinarily presumed. The presumption is displaced where the circumstances excite suspicion. The person propounding the will must then prove affirmatively, on the balance of probabilities, that the testator knew and approved its contents.

Suspicion is especially significant where a beneficiary prepared the will, received a substantial benefit, failed to keep proper instructions or provide independent advice, and the will makes a substantial unexplained departure from earlier testamentary dispositions. Reading technical testamentary language aloud will not establish knowledge and approval if the language is unlikely to be understood without explanation.

Morley Franks sought probate in solemn form of his late mother’s will dated 26 May 1994. That will divided the residue equally between him and his sister, Ann Sinclair, and appointed Jonathan and David Sinclair as executors. The defendants opposed it and sought probate of an earlier will dated 21 May 1992, under which Jonathan Sinclair was the principal residuary beneficiary.

Testamentary capacity and due execution were accepted. The central issue was whether Mrs Franks knew and approved the contents of the 1994 will, particularly the provision dealing with the residue. Because Mr Franks had taken the instructions, prepared the will and benefited under it without arranging independent advice, he accepted that the burden of proving knowledge and approval lay on him.

1. The claim was refused. The court pronounced for the force and validity of the 21 May 1992 will.
2. Under