Contested probate case provides new guidance where a testator struggles with English

Making a Will
A recent contested probate case has provided private client solicitors with ‘best practice’ guidance where a testator’s first language is not English, or where they struggle to understand the language.

Background

The Deceased Mr Dhalei originated from Yemen but had been living in the UK for almost 40 years before he made a Will in 2012. The Will was made in favour of his third wife, or their children if she did not survive him. It did not provide for the 14 children of his first and second marriages.

Those 14 children challenged the 2012 for want of knowledge and approval, on the basis that their father had limited knowledge of English. They asserted that he was illiterate both in his first language (Arabic) and English, describing his competence in the language as ‘broken’, ‘shop’, ‘simple’ or ‘basic’ English.

Their argument was, therefore, that he could not have understood or approved the 2012 Will without it being translated. Further they argued that had he understood the 2012, he would not have excluded them from it.

The Deceased’s third wife and sole beneficiary of his estate defended the claim. She asserted that although he was illiterate, his grasp of English was not as poor as the children alleged. Other witnesses described his English as not the best – “it was broken English, but I’ve heard worse.”

A solicitor, Mr Abenson, had prepared the 2012 Will which contained a standard attestation clause. Unfortunately the Will file had been lost or mislaid and he could not recall making the Will specifically, although he did recall the client, noting that he had never come across a man who had 19 children before. The solicitor has practised for some 40 years when he came to draft the Deceased’s 2012 Will and would have prepared more than 3,000 wills during his lifetime. He gave evidence of his general practice, noting that he would not allow anyone to sign a Will who did not understand it and he would have explained the Will fully to the deceased. He further made the point that it was not a difficult Will to explain or to understand.

“I wouldn’t have allowed him to sign the will if I felt he didn’t understand it. In every single case I would get a vocal response. It would have been explained and read back to him.”

Outcome

The Court held that the Deceased did have knowledge and approval of the Will. The solicitor confirmed that his standard practice was to read out and explain the Will’s terms to his client.

They considered first the testimonium and attestation clause contained in an earlier 1997 Will prepared by a reputable and competent solicitor who it was noted had served as the President of the Law Society. That solicitor had recorded that the Deceased in 1997 understood the English language despite having an imperfect knowledge of it. Cautiously the earlier solicitor took the precaution of arranging an interpreter who relayed the contents of the Will to Mr Dhalei.

The Court further considered an attendance note dated 5th of June 2007 regarding Lasting Powers of Attorney. In that note, the legal advisor questions the interpretation of Mr Dhalei’s name as an old Power of Attorney refers to ‘Kassim’. The note records that Mr Dhalei gave his full name, Abdullah Nagi Kassim Dhalei, and explained in detail the significance of each of his names before doing the same for his wife. The Court noted that quite clearly, the Deceased’s ability to communicate to that extent with the writer of the attendance note in 2007, five years before the 2012 Will was made,  corroborated that he had a sufficient command of the English language. Consequently, some 15 years after making the 1997 Will, the Deceased’s grasp of English would have been sufficient to understand what the solicitor was reading and explaining to him in 2012.

Implications

The Court stressed that there was a lesson to be learned from this case. Where a testator’s first language was not English or where there were other difficulties apparent in understanding the language, they suggested that best practice would be to as the testator to paraphrase the terms of the Will, prior to executing it. Per HHJ Hodge QC:

“It would have been much better had Mr Abenson specifically invited the deceased to explain to Mr Abenson what he understood by the will. That, in my judgment, would have been good practice; but, like the Golden Rule, it is recommended practice and not mandatory.”

For more information on contesting a Will, click here.

Case reference: Re Dhalei (deceased) [2019] EWHC 2763 (Ch) (06 September 2019)

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