Mundil-Williams v Williams & Ors

Knowledge and approval of a will concern whether its contents represented the testator’s testamentary intentions when it was executed. Although due execution, testamentary capacity and professional preparation ordinarily provide powerful evidence, suspicious circumstances require the court to examine the totality of the evidence. A material misunderstanding may prevent the will from being admitted in its literal form.

Where only part of a will was not known and approved, the court may omit words if the testator’s intention is clear and the omission brings the document into conformity with that intention. The court cannot add words or alter the sense of the remaining provisions.

The claimant challenged the 2014 Will of John Williams, seeking probate of his earlier 1990 Will. The dispute concerned knowledge and approval, not testamentary capacity, undue influence or execution. The 2014 Will gave the farm and farming partnership to Richard Williams and divided the residue unequally among the brothers. The claimant contended that the testator had intended the farm to fall into residue, subject to Richard receiving the farming business and a larger share. The central issues were whether the testator understood and approved the 2014 Will and, if not, whether the court could admit it after omitting the provisions that caused the misunderstanding.

1. Knowledge and approval. The question was whether the 2014 Will represented the testator’s testamentary intentions. Due execution, testamentary capacity, solicitor preparation, reading of the document and confirmation of understanding were powerful factors in favour of validity. They did not determine the issue where the surrounding circumstances raised a serious concern.
2. The court assessed the whole evidential picture, giving substantial weight to contemporaneous documents and treating recollections of conversations with caution. The 2014 Will materially departed from the detailed instructions given to Ms Gillard. The later telephone instructions were obtained without warning, the divergence was not identified, the effect on the residuary estate was not explained, and the misleading letter encouraged the belief that the farm formed part of residue. The will was not read aloud at execution. These matters compelled the conclusion that the testator believed Richard would receive 62.5% of the farm, rather than the farm outright.
3. The testator therefore lacked knowledge and approval of the 2014 Will in its literal form. It did not represent his testamentary intentions.
4. Omission of words. The court considered its power to admit a will after omitting words inserted through inadvertence or misunderstanding. The power permits severance where the testator’s intention is clear and omission gives effect to it more closely than rejection of the whole instrument. It does not permit the court to add words, remake the will, or omit words where the sense of the remaining text would be altered.
5. Omitting the words in clause 5 giving the farm to Richard absolutely would place the farm, subject to the agricultural tenancy, in the residuary estate. The meanings of “the rest of my estate” and “my residuary estate” in clause 8 would remain unchanged. The omission therefore fell within the jurisdiction. The intended five-year option could not be inserted by omission, and any rectification claim under section 20(1)(b) of the Administration of Justice Act 1982 had not been made.
6. The 2014 Will was to be admitted subject to the appropriate omission, with the precise terms of the order to be settled after submissions.