Fitzgerald & Ors v Henerty & Ors

In a will dispute, suspicious circumstances place the burden of proving knowledge and approval on the person propounding the will. If no such circumstances arise and the will is read to the testator, knowledge and approval may be inferred. The testator must know what the document contains and accept it as expressing the testamentary intentions to which effect is to be given. It is not necessary to understand the precise legal mechanism or every technical consequence, provided the will carries through the real intention. Prior instructions and the reading of the will are important evidence. Appellate courts should respect trial findings on these matters where they are supported by reliable and corroborated evidence.

The claimants appealed from an order of HHJ Pelling QC in the Chancery Division concerning the will of Thomas John Fitzgerald. The judge found that the deceased had testamentary capacity, knew and approved the will, and was not acting in circumstances that excited suspicion. Capacity was not challenged on appeal.

The claimants argued that the exclusion of two daughters and an option requiring the deceased’s shares in Vale to be offered to the company at the value used for probate and inheritance tax purposes were not shown to reflect his wishes. Permission to appeal had been granted by Gloster LJ. The central issues were whether the judge’s factual findings were open to him and whether knowledge and approval required understanding the option’s precise legal effect.

1. Appeal dismissed. The Court of Appeal unanimously held that the judge was entitled to find that the deceased knew and approved the contents of the will.
2. Suspicious circumstances, if established, place the burden of proving knowledge and approval on the person propounding the will. The appellate court found no proper basis to interfere with the judge’s conclusion that suspicion had not been raised. The judge had considered the interested position and deficiencies in Mr Henerty’s evidence, the deceased’s grave illness, and the late introduction of the relevant clauses. His findings were supported by corroborating evidence from Mr Taher and the solicitors.
3. The operative question was whether the will expressed the deceased’s real testamentary intentions. Prior instructions and reading the instrument to the testator were the best evidence of that issue, consistent with Perrins v Holland [2011] Ch and Barry v Butlin (1838) 2 Moo PC 480.
4. Knowledge and approval did not require the deceased to understand every technical legal consequence of the dispositions. It was sufficient that he knew the contents and accepted the will as giving effect to his testamentary intentions. The court relied on Parker v Felgate (1883) 8PD 171 and the explanation in Gill v Woodall [2011] 3 WLR.
5. As to the daughters, the evidence supported the finding that the deceased had decided to make no provision for them and confirmed that instruction. As to the shares, his simple intention was that they should return to Vale. The option clause, which was read to him and accepted, achieved that intention. The technical distinction between an option and a right of pre-emption, and the precise valuation mechanism, did not invalidate the finding of knowledge and approval.

• Court of Appeal (Civil Division) — [2016] EWCA Civ 701: appeal from the order of HHJ Pelling QC dismissed.
• High Court of Justice, Chancery Division, Manchester District Registry — HHJ Pelling QC found that the deceased had capacity and knew and approved the contents of the will. No separate citation was stated in the judgment.