Kassim v Saeed

In a contentious probate claim, the party propounding a will must prove that the testator knew and approved its contents where the circumstances require affirmative proof, including where the testator was illiterate. The court applies a single practical question: whether the will’s contents were brought home to the testator, including its substance and effect. A reading-over is preferable but is not mandatory. Instructions independently given by the testator, or other satisfactory evidence that the will reflects those instructions, may suffice. A testator need not understand technical legal phraseology or every aspect of the will’s legal effect, provided its substance is understood and accords with the testator’s instructions.

The deceased’s fourteen children challenged the validity of a 2012 will made by their father, on the sole ground that he had not known or approved its contents. The deceased was illiterate and had limited English. The will appointed his third wife as sole executrix and principal beneficiary, with charitable gifts of two properties and a contingent gift to their five children.

A previous 1997 will was discovered during the trial. The claim was amended to seek its admission if the 2012 will failed. The central issue was whether the defendant had proved, on the balance of probabilities, that the deceased understood and approved the 2012 will when he executed it.

1. Claim dismissed. The existing grant of probate was left standing, and the court pronounced in solemn form for the validity of the 2012 will.
2. Because the deceased was illiterate, the defendant bore the burden of proving affirmatively that he knew and approved the will. The relevant inquiry was whether the contents had been brought home to him. This involved asking whether he understood what the will contained and what its effect would be.
3. There was no strict requirement that the will be read aloud. A reading-over was preferable, particularly in cases of illiteracy or language difficulty, but proof that the testator gave instructions which were embodied in the will could suffice. The court approved the principle that technical phraseology need not be understood if the substance of the will was understood and reflected the testator’s instructions.
4. On the evidence, the deceased’s command of English was sufficient for him to give instructions and understand the will. The judge accepted that the solicitor had read the will back to him, explained its effect, and ensured that he understood and agreed with its contents. The will was relatively simple, and the earlier will and contemporaneous attendance notes supported the conclusion that the deceased could communicate sufficiently in English.
5. The judge observed that it would have been good practice to ask the deceased to explain the will in his own words. That was recommended practice, comparable to the Golden Rule, rather than a mandatory legal requirement.