What happens if your Will isn’t signed correctly?

The recent case of Barrett v Bem & Others further highlights the problems that can arise if Wills are not signed in accordance with s9 of the Wills Act 1837.

At Tyndallwoods, we always recommend clients consult a Solicitor in relation to the drafting and signing of their Will to ensure that their Will is signed and witnessed correctly.  Detailed file notes completed by your Solicitor can also help to ensure your Will is robust against challenge.

We outline details of the recent case below.

Barrett v Bem & Others [2012] EWCA Civ 52

Did Martin Lavin who died on 11 January 2004 make a valid will on the day of his death?

The case had been tried twice, once in 2009 and again in 2011.  In the first trial the alleged will was successfully challenged by one of the deceased’s nephews, Michael, that the deceased had not in fact signed it.  At the second trial the same challenge failed and the judge found in favour of the disputed will on the basis that it was signed at Martin’s direction by his sister Anne, who was the only person to benefit under the will.

The subsequent appeal by Michael was brought on two grounds:

i) The facts found by the judge did not amount in law to a direction to Anne to sign the will on Martin’s behalf; and

ii) Since it was the sole beneficiary of the Will who signed it, it ought to be declared invalid on grounds of public policy. There is a statutory rule that says that if a beneficiary of the Will is also a witness, their gift is invalid and Michael’s argument was that this situation was similar.

Having said at the first trial that Martin had signed the will unaided, the witnesses to the will changed their evidence at the second trial, that they remembered Anne holding Martin’s hand in hers and “between the two of them they signed the will” thus the case advanced at the second trial, that Martin signed the will himself, with the aid of Anne in holding his hand to stop it shaking. On expert evidence the judge was satisfied that Martin did not sign the will and that Anne signed the will at Martin’s direction.

Lord Justice Lewison concluded :

(1) it is not enough for a third party to sign the will in the presence of the testator.  He must have done so at the direction of the testator.  The requirement in section 9(a) of the Wills Act 1837 is that there must be a direction to sign and this suggests a more active role on the part of the testator than a mere acknowledgement.  The testator had to make some positive communication either verbal or non-verbal of his desire that someone else could sign the will on his behalf and there had to be something to make it clear to the attesting witnesses that the testator was adopting the third party’s signature as his own.

There had been no such finding of fact in either trial, nor was there evidence to support a finding that Mr Lavin had asked Anne to step in and sign the will, or that she had asked him if she should sign before she stepped in.  The fact that Mr Lavin had wanted to make a will and had tried and failed to sign it personally was insufficient to amount to a direction to Anne on his behalf.  The evidence fell short of establishing any positive communication by Mr Lavin directing Anne to sign the will.

(2) It is undesirable that beneficiaries should be permitted to sign 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

If you would like any information about Wills, please do not hesitate to contact me.

Nicola Beggan
F.Inst.L.Ex.
Private Client Team
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