Judicial Gymnastics – second Court of Appeal hearing in Barrett v Bem
How many Court of Appeal judges does it take to decide whether a Will was validly executed? Six.
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What makes this case rather different from the procedural norm is that Vos J’s judgement was itself a retrial ordered by the Court of Appeal  EWCA Civ 282 following the original trial of the action by Mr Geoffrey Vos QC (as he then was)  EWHC 2597. As a result of these procedural gymnastics, Vos J has been placed in the unenviable position of having pronounced both for and against the same Will – and been successfully appealed both times. After an appeal, a retrial and another appeal, it turns out that Vos J was right the first time round.
How this state of affairs came to occur is a salient lesson for everyone involved in contentious probate: that winning an appeal doesn’t always equate to winning in the end. However, although this is a case that will be known for its procedural history, it also offers enlightening guidance of a little-litigated aspect of due execution of a Will: a third party signing the Will at the testator’s direction.
Martin Lavin died a bachelor on 11 January 2004, with seven surviving sisters (although only one survived to the date of the first trial). On the day of his death, in Hammersmith Hospital, a Will (“the Will”) was prepared for him by his niece Hanora Bem. The Will left the entirety of Martin’s estate to one of his sisters, Anne (Hanora’s mother) and appointed her executor. It was signed around 2-3 hours before Martin’s death. The witnesses were two nurses at the hospital, Staff Nurse Haris and Staff Nurse Hawadi. There was no question as to Martin’s capacity.
Anne was granted probate of the Will on 15 June 2004. By the time of the first trial Anne had died and so her cause was taken up by the sole beneficiary of her Will, Hanora.
The focus of all four trials was over whether the Will had been validly executed in accordance with s. 9 (a) Wills Act 1867: such that it was ‘in writing, and signed by the testator, or by some other person in his presence and by his direction’.
At the first trial a great deal of evidence was given on a number of matters but the crucial evidence was that of the handwriting expert, Mr Robert Radley and the evidence of Hanora and Nurse Haris (Nurse Hawadi had not been traced and did not give any evidence at the first trial). Both Hanora and Nurse Haris gave clear evidence that Martin had signed his Will unaided. This was expressly contradicted by the expert handwriting evidence of Mr Radley who concluded that the possibility of Martin having signed the Will could be ‘realistically disregarded’ (stark terms for a handwriting expert).
The first decision
The Judge concluded that Martin had not signed the Will. He trailed the concept of the Will having been signed on Martin’s behalf in his judgement, but had heard no evidence on it and felt unable to decide the point:
‘For all these reasons, therefore, it seems to me that the answer to the first issue stated above is that Martin did not sign the Will, but that his name was written by someone else. I am not able on the evidence before me to determine who signed his name or in what circumstances, since no evidence (apart from the handwriting evidence) has been adduced suggesting that another person did sign it.’
The Judge accordingly pronounced against the Will.
After the trial, Nurse Hawadi was successfully tracked down. In her statement she said that either Anne or Hanora held Martin’s hand to steady it while he signed the Will. She said that she was 100% certain that the pen was in his hand when the Will was signed. The Court of Appeal  EWCA Civ 282 admitted the fresh evidence and directed a retrial before Vos J as he had then become.
At the retrial Hanora and Nurse Haris changed their evidence from what they had said in the first trial. Having said before that they had seen Martin sign the Will himself unaided, they then said that Anne had held Martin’s hand to stop his hand from shaking too much. Both made it clear that Anne had held Martin’s hand not the pen (it was thus said to be a ‘guided hand’ signature). Vos J was unconvinced by this new line of argument. It was also flatly contradicted by the new expert evidence called: this time both Mr Radley and Dr Audrey Giles who agreed that there was ‘conclusive evidence’ that the signature on the Will was not produced in this manner.
The second decision
Vos J thus decided that Martin had not signed the Will, whether guided by Anne or not. What he did decide was largely based on a comment of Hanora’s that Martin’s hand was shaking and that Anne had come over to him and ‘between the two of them they signed the Will’. Thus despite the fact that Vos J felt the evidence of Hanora, Nurse Haris and Nurse Hawadi was all unreliable and despite the fact that no positive case had been put forward that Anne had signed the Will at Martin’s direction, this is nonetheless the conclusion Vos J reached. He concluded on the facts that Martin had tried to sign the Will but been unable to do so and Anne had signed it for him. As to the requirement of direction he held:
‘the act of attempting to sign personally and failing to do so, having expressly said he wanted to make a Will and expressly approved its contents, together with allowing Anne to sign on his behalf, can and should be taken as a direction by conduct to Anne to sign the Will in those terms on his behalf’
The second appeal
The leading judgement in the second Appeal is that of Lewison LJ, with whom Hughes and Maurice Kay LJJ agreed without adding anything.
Lewison LJ set out what few cases there are on directing the signature of Wills and also considered those cases that address the testator acknowledging his signature before his witnesses in cases where they have not seen the testator actually sign the Will (pursuant to s.9 (c)).
Lewison LJ pointed out that on a question of due execution, the court does not have any discretion to disapply any of the technical requirements. He also held, by reference to the Oxford English Dictionary, Parker v Parker (1841) Milward 541, Jenkins v Gaisford (1863) 3 Sw & T 93 and other early cases that ‘direction’ for the purposes of s. 9 (a) Wills Act 1867 required:
‘something more than acquiescence or passivity on the part of the testator is required. What is required is something in the nature of an instruction… In my judgment the court should not find that a Will has been signed by a third party at the direction of the testator unless there is positive and discernible communication (which may be verbal or non-verbal) by the testator that he wishes the Will to be signed on his behalf by the third party.’
The crucial finding of fact for Vos J was that Anne ‘stepped in, took the pen, and signed the Will… on Martin’s behalf. For the Court of Appeal, this is not sufficient. The mere fact that Martin had wanted to make a Will and been unable to sign it personally was not sufficient to amount to a direction; the finding of a ‘wish to direct Anne to sign’ was not sufficient: there had to be an actual positive direction, whether by words or conduct and here there was only evidence of passivity (none of the evidence suggested that Martin had said anything at this point). As a result the Court of Appeal concluded that the Will was not validly executed and pronounced against it.
The result may seem to be unimpeachable, but it does mean that the technical requirements as to due execution can deny Wills where, as in this case, it appears that the testator knows what he is doing, wants to give all his assets to a particular person and yet is denied doing so because he failed to vocally exhort the person signing on his behalf. On the other hand, of course, there are sound policy reasons for passivity not being sufficient to execute a Will in another’s favour.
On that latter point it is a shame that the second ground of appeal did not arise – whether a rule of public policy should prevent the person who signs at a testator’s direction from benefitting under a Will (in the same way that a witness to a Will cannot benefit from it). Although Lewison LJ did not decide it, he made his view clear that ‘it is plainly undesirable that beneficiaries should be permitted to execute a Will in their own favour in any capacity’. Whether Parliament will take up this point is another matter.