When a person dies, difficulties sometimes arise because doubts exist regarding whether that person had "knowledge and approval" of the contents of their will. This is a separate question from whether the will was executed with the necessary formalities under law and also separate from the issue of whether the person making the will had sufficient mental capacity.

Sometimes, what appears to be a perfectly valid will properly executed by a person in good mental health is challenged, normally by a disappointed family member, on the ground that the person making the will neither knew nor approved of what the will stated.

The party claiming that a will is invalid on this ground must point to some facts that gave rise to suspicion. The level of proof required by the court depends on the degree of suspicion raised. The recent case of Boudh v. Boudh, decided in the Court of Appeal in England in 2007, is an interesting example of this area of probate law.

The case revolved around the will of the late Nami Chumber, a resident of southern England who spoke Punjabi and could not read English. The disputed will, executed in November 2000, was typed in English but it included a clause stating that it had been read to Mrs. Chumber in Punjabi. The disputed will left Mrs. Chumber's property to her two grandchildren and was challenged by Mrs. Chumber's son, who stood to inherit from a will that was executed in March 2000. Different lawyers drew up the March and November wills, and both appeared valid on their face.

Mrs. Chumber's son pointed to a large number of factors, some of them quite remarkable, to argue that his mother did not have knowledge and approval of the contents of the November will. Among these were that the lawyer who had been responsible for drawing up the November will (and who was by then deceased) was of proven bad character. The lawyer had been found guilty of various serious breaches of professional conduct and was alleged to have used the November will as a piece of scrap paper and to have doodled on it. It was also alleged that neither of the witnesses to the will were fluent Punjabi speakers and thus it would have been impossible for either of them to have read over the contents of the will in translation.

While the factors pointed to by Mrs. Chumber's son raised sufficient suspicion for the court to inquire closely into the circumstances surrounding the November will, the judge found that it had been made with Mrs. Chumber's knowledge and approval. The main reason for this was that a good friend of Mrs. Chumber's gave evidence about how the November will had been drawn up and executed. This lady came from the same village in India as Mrs. Chumber, lived close to her in England and had known her for more than 30 years. This witness said that Mrs. Chumber had told her that she wanted to change her will to exclude her son since they had fallen out. The witness and her husband (who was fluent in Punjabi) went with Mrs. Chumber to the lawyer's office in November 2000. The witness told the court that her husband (who was by then also deceased) had translated and explained the contents of the November will to Mrs. Chumber before she had executed it.

The evidence of this witness was crucial to the determination of the case. While the witness gave conflicting evidence about the circumstances surrounding the execution of the November will, the judge held that her evidence had the "ring of truth". The Court of Appeal agreed with the judge's findings. The Court of Appeal judge made some interesting and realistic comments about the task of a witness being asked to recall what happened years earlier. The judge said that the events of that day in November 2000 "were probably as fleeting, fragmentary and chaotic as real life often is". The judge said that this should not be overlooked in "the unreal forensic process of attempting, six years later, to recollect and reconstruct what in fact happened in the course of a short visit to the unfamiliar surroundings" of the lawyer's office.

Thus, Mrs. Chumber's November will, which benefitted two of her grandsons and excluded her son, stood and was admitted to probate.

Attorney Keith Robinson is a member of the Litigation and Insolvency Practice Group at Appleby. A copy of Mr. Robinson's column can be obtained on the Appleby website at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.