Wills Validity – Barrett v Bem  EWCA 52
Will draftsmen and probate practitioners will be familiar with the requirements for a valid Will as far as execution of the document is concerned – it must comply with s.9 Wills Act 1837 but in what circumstances might the execution still turn out to be valid when not signed strictly in accordance with the basic requirements?
The recent case of Barrett v Bem heard initially  EWHC 1247 is a fascinating review of what passes muster. As Leon Pickering of 10 Old Square says in his summary on www.lawskills.co.uk ‘how many appeal court judges does it take to decide on the validity of a Will – apparently 6!
This came before the High Court and in particular Mr Justice Vos for the second time by way of a re-trial ordered by the Court of Appeal on the basis of evidence which came to light after the first hearing. The parties did not shower themselves in glory but nevertheless practitioners should be grateful to them because of the clarification it brings as to the circumstances when a Will may be valid even though it is not executed as usual.
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The second trial decision was also appealed.
The Will in dispute was purportedly made by Martin Lavin (the deceased) on 11 January 2004 (2004 Will) which was the day he died. The deceased was not married and had no children but came from a large Irish family and the 2004 Will was made in favour of his elder sister Mrs Anne Liston (Anne).
It was a homemade Will drafted by Anne’s daughter, Hanora who was present with her mother when the deceased died. The Will was supposedly witnessed by two nurses – Nurse Hawadi and Nurse Haris.
The first time Mr Justice Vos heard the case brought by Michael Barrett against the validity of the Will he found in favour of the claimant and against the validity of the Will. The re-trial came about because the Court of Appeal heard a new statement from Nurse Hawadi about how the Will had been signed and as a result Nurse Haris and Hanora both submitted revised statements. For this trial there was even further expert evidence on the question of whether the signature was a forgery.
Also, an earlier Will (2002 Will) prepared by solicitors acting on behalf of HSBC Trust Company (UK) Ltd., was discovered which if the 2004 Will was found to be invalid then the terms of the 2002 Will would apply. This benefitted a different sibling’s family.
To the discredit of both Michael and Hanora there was many twists and turns in the story of the execution of the 2004 Will and the subsequent administration of the deceased’s estate.
What is clear is that Anne made a Will on 26 September 2003 appointing Hanora and Hanora’s son as executors and trustees and leaving half her residuary estate to Hanora and half to Hanora’s three children. Subsequently, the deceased made his Will three hours before he died which said:
“I Martin Lavin of 574 Greenford Road, Greenford, Middx, declare this to be my last will + testament and I cancel all others. I would like to leave everything I have to my sister, Anne Liston of 95 Mansell Road, Greenford. I want Anne Liston to deal with probate. I wish to be buried in Ireland.”
On 14th January 2004 Hanora informed HSBC of the deceased’s death and that he had made a subsequent Will to the 2002 Will the result of which meant the Branch told the trust company that the 2002 Will had been revoked and should be released to the executors in due course.
Hanora set about dealing with the estate on behalf of her mother. She wrongly asserted in the application for probate that the deceased’s estate did not exceed £230,000 when in fact the deceased had over £100,000 in cash in various accounts and his house was valued at £200,000.
Hanora transferred various sums of money from the deceased’s accounts to her mother’s account. By 25 October 2004 Anne was very ill and subsequently died on 25 January 2005. Hanora certified Anne’s estate at £415,200.
The dispute with Michael Barrett started by letter from his solicitors dated 16 November 2005 and took place first of all as a battle between Michael and Hanora over the vacant possession of the deceased’s property which was occupied by Michael and his employees. This resulted in Hanora obtaining vacant possession of the property which she subsequently sold to a third party for £230,000.
How was the 2004 Will signed?
The handwriting experts at the first trial submitted a joint report concluding that it was very unlikely that the 2004 Will was signed by the deceased.
The new evidence of Nurse Hawadi was that either Anne or Hanora held the deceased’s hand to steady it whilst he signed the 2004 Will. She said she was 100% certain that the pen was in his hand when the Will was signed. This statement made both Hanora and Nurse Haris revise their statements to say that Anne was holding the deceased’s hand to stop it shaking.
A further report from the handwriting expert said that “the possibility that this is a guided hand signature may be realistically disregarded.” Subsequently this view was re-iterated and went on to say that there was no evidence that the deceased made any contribution to the signing process – the reason for this was the fluency with which the signature was made and other features which indicated that the pen was being held in a normal manner by the person writing the signature.
Suffice it to say that Mr Justice Vos had to sift through the evidence to decide what he thought happened and if this meant that the deceased had made a valid Will.
The law as per Mr Justice Vos
In general terms the Courts will lean in favour of validating testamentary dispositions wherever that can properly be done in order to give effect to the intention of the testator.
s.9 Wills Act 1837 provides:
“No Will shall be valid unless:
- It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- It appears that the testator intended by his signature to give effect to the Will; and
- The signature is made or acknowledged by the testator in the presence of two of more witnesses present at the same time; and
- Each witness either
(i) Attests and signs the Will; or
(ii) Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary.”
It is clear that an ‘acknowledgment’ is only necessary if the testator signed his Will not in the presence of the witnesses and he acknowledges it is his signature before they sign their names in accordance with s.9(c) above.
If the Will is signed by some other person rather than the testator but at his direction then there is no need to acknowledge this signature when the witnesses come to make their own.
The case of Fulton v Kee  NILR 1 from the Court of Appeal in Northern Ireland considered the situation of where there was no direction but due to the extreme frailty and physical weakness of the testator what would constitute signature by the testator. If he does not direct someone else to sign does he have to make his mark unaided? S.9(a) would appear to suggest either he directs someone else or he has to make his mark unaided.
In fact Lord MacDermott in Fulton decided that a testator wishing to execute his Will himself need not depend solely on his own efforts; he may be helped to make his signature or mark. However, he must be able to do some physical act in connection with the signing such as to indicate the intention to execute his Will. It needs something positive and discernible and not just a sign of abstention.
Lord MacDermott gave the following useful example:
“A testator who is completely powerless in his limbs says to his solicitor, who has drawn his Will according to his instructions. ‘Now put my hand on yours’ and the solicitor then writes the testator’s name with the testator’s limp fingers upon his. That, for the reasons I have stated, would not, in my opinion, amount to a personal execution by the testator, but in the absence of something to indicate to the contrary I do not see why it should not be regarded as a signing by direction.”
Mr Justice Vos summarised the law in this way:
- A testator may either sign the Will himself or direct another person to sign it on his behalf.
- If the testator directs another person to sign the Will on his behalf and that person does sign the Will on his behalf, in the presence of two witnesses, the Will is ‘signed’ by the testator within section 9(a), and no subsequent acknowledgement of his signature is necessary.
- If the testator chooses, instead of directing another to sign, to sign the Will himself in the presence of the two witnesses, assisted by another person, the Will is only validly signed in accordance with s.9(a) if the testator makes some positive and discernible physical contribution to the signing process, as opposed to simply to abstaining from preventing the signing.
He concluded on balance of probabilities that even if the deceased in this case did have his hand on the pen at some stage, he did not make a sufficient contribution to the signing process to satisfy the criteria. However, he was satisfied that Anne had signed the 2004 Will at the deceased’s direction.
Having made that decision he had to be satisfied that the deceased’s true intentions were fulfilled and that he had knowledge and approval of the contents of the Will. He referred to the second rule in Barry v Butlin (1838) 2 Moo PC 480 which says:
“If a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which, it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”
Here the Will was signed by the beneficiary Anne on behalf of the deceased and prepared by the beneficiary’s daughter – so must excite great suspicion. The Judge considered s.15 Wills Act 1837 which makes a gift to an attesting witness null and void but Anne was not an attesting witness. It was submitted by counsel for the claimant that s.15 should prevent from inheriting anything under the Will a person who witnesses the signature of the testator or, the person signing on his behalf or if signing on his behalf.
Interestingly, it is permissible for a beneficiary to sign at the direction of the testator. Cases from the time the Wills Act 1837 came in confirm that it is permissible for an attesting witness to sign at the direction of the testator – Re Bailey’s Goods (1838) 1 Curt 914; Smith v Harris (1845) 1 Rob Eccl 262 as well as the drawer of the Will – re Clark’s Good (1839) 2 Curteis 329
There was no case which opposing counsel could find which provided authority for the present situation where the Will is signed by a beneficiary at the direction of the testator. From first principles the Judge concluded that s.15 only makes the gift void if an attesting witness is the recipient. It cannot be extended to persons signing at the direction of the testator. However, in such a situation, bearing in mind the rule from Barry v Butlin such a Will signing should be scrutinised carefully.
He decided in the extraordinary circumstances of this case that the deceased knew and approved the 2004 Will, wanted Anne to benefit under it and validly directed her to sign it on his behalf. It was therefore valid.
Lord Lewison gave the lead judgment and said that:
- All four conditions of s. 9 Wills Act 1837 must be satisfied before a Will can be said to be validly executed
- There is no discretion on the part of the court to override compliance with these conditions in order to give effect to the putative testator’s intentions or wishes
- The conditions set out what is in effect the correct sequence of events
- Since validity of the Will necessarily arises after the principal actor is dead there are powerful policy reasons for insisting on the fulfilment of these requirements
- The starting point for understanding the requirements of s.9 must be the words of the section itself:
- Either the testator personally signs it
- Or he directs someone else to do so
It is not enough for a third party to sign the Will in the presence of the testator, the testator has to direct them to do so. A direction to sign under s.9(a) requires a more active role by the testator than the mere acknowledgement under s.9(c).
He went on to say that in his opinion the court should not find a Will has been signed by a third party at the direction of the testator unless there is a positive and discernible communication (which maybe verbal or non-verbal) by the testator that he wishes the Will to be signed on his behalf by the third party, with the attestation clause duly amended to reflect this (as a matter of good practice).
There was no evidence presented in either trial to suggest that Anne was asked to sign the Will for Martin. It was not sufficient to amount to a direction to Anne that Martin wanted to make a Will and had tried and failed to sign it personally.
He echoed Vos’s view that it was undesirable that beneficiaries should be permitted to execute a Will in their own favour in any capacity and Parliament should consider changing the law to ensure that this cannot happen in the future.
- In an ideal world the intending testator has the strength to hold the pen and make his own signature.
- If he is not able to do so but understands the document to be signed and gives his knowledge and approval to it he can direct someone else to sign it and that can be you as the Will draftsman. You can even act as a witness surprisingly. However, direction requires a positive act.
- If he tries to muddle through with his signature but needs help in the holding of the pen there has to be evidence of involvement and not passive lack of resistance. This might be hard to prove later and it would be important to make a careful attendance note and encourage the testator to direct someone else to sign at his direction instead.
- It is possible for a beneficiary under the Will to sign at the direction of the testator as s.15 Wills Act 1837 does not apply to beneficiaries signing at the direction of the testator only to beneficiaries acting as witnesses to signatures. However, this may very well result in a court case as it will excite the interests of those losing out and a court must investigate with vigour whether this was a Will which fulfilled the wishes of the testator. Plus, if the calls of the judiciary are heard this strange possibility may be changed by Parliament. Watch this space.
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