Sharp v Hutchins

Knowledge and approval of a will is determined by asking whether the testator understood its contents and effect. The court should generally adopt a single-stage, holistic assessment of all relevant factual and expert evidence. Proof of capacity and due execution may support a strong inference of knowledge and approval, but neither is conclusive. Where the circumstances arouse suspicion, affirmative evidence may be required. A two-stage analysis may be used as a cross-check, provided it does not replace the holistic evaluation. The burden remains on the propounder to establish knowledge and approval on the balance of probabilities.

This was a probate action concerning two wills made by Ronald Hubert Butcher. The claimant, Daniel Bryan Sharp, propounded a will dated 5 January 2013 under which he was executor and sole beneficiary. The defendant, Evelyn Valerie Hutchins, propounded an earlier will dated 4 December 2011 and challenged the later will for want of knowledge and approval.

Capacity and due execution of the 2013 Will were agreed. The central issue was whether Mr Butcher understood the contents and effect of that will when he executed it. The court also considered, if necessary, whether the 2011 Will complied with section 9 of the Wills Act 1837.

1. The court pronounced for the 2013 Will and dismissed the Counterclaim. It was satisfied that Mr Butcher had knowledge and approval of the will and intended it to give effect to his testamentary wishes.
2. Following Gill v Woodall [2010] EWCA Civ 1430, the proper primary approach was a single-stage assessment. The question was whether Mr Butcher understood what was in the 2013 Will and what its effect would be. The court had to consider the totality of the factual and expert evidence holistically.
3. Proof of testamentary capacity and due execution gave rise to the usual strong inference of knowledge and approval. The inference was reinforced because Mr Butcher had read the short and comprehensible will, had previously prepared wills in a similar manner, knew he was executing a new will, and personally gave the document to the claimant for reading. These matters were assessed alongside the evidence concerning the execution and the parties’ relationship.
4. The court could use the two-stage approach as a cross-check. Even if the circumstances raised a relatively low degree of suspicion, the claimant had amply rebutted it on the full evidence. The will had not been procured by the person benefiting under it, and the evidence of the attesting witnesses and the surrounding circumstances was accepted.
5. It was unnecessary to decide the validity of the 2011 Will. Had the 2013 Will been invalid, the court would have held that Mr Butcher intended his signature to give effect to the 2011 Will for the purposes of section 9 of the Wills Act 1837, despite the signature being placed incorrectly.

First-instance decision. No prior appellate history was stated in the judgment.