Barrett v Bem [2012] EWCA Civ 52

Martin Lavin died in hospital hours after a disputed will was produced leaving everything to his sister Anne, who allegedly signed it. The Court of Appeal held the will invalid, requiring positive communication by a testator to direct another to sign.

Facts

Martin Lavin died in hospital on 11 January 2004. On the day of his death, his niece Hanora Bem (a former legal secretary) prepared a manuscript will in his favour of his sister Anne Liston, the sole beneficiary. The circumstances of signing were disputed. At a first trial, Hanora and Staff Nurse Haris testified that Martin signed the will unaided. The judge (Mr Geoffrey Vos QC), relying on handwriting evidence, found Martin had not signed it, and the will failed. Fresh evidence from Staff Nurse Hawadi (who had not been traced initially) led the Court of Appeal to order a retrial.

At the retrial before Vos J, the witnesses changed their account, now asserting that Martin attempted to sign but his hand shook, and Anne steadied his hand (a “guided hand” signature). Expert handwriting evidence from both sides conclusively refuted this. The judge rejected the guided-hand account but nonetheless found that Anne had stepped in, taken the pen, and signed the will on Martin’s behalf at his direction, pronouncing in favour of the will.

Issues

Two grounds of appeal were advanced:

1. Whether the facts found by the judge amounted in law to a direction by Martin to Anne to sign the will on his behalf within section 9(a) of the Wills Act 1837.
2. Whether, as a matter of public policy, a will signed by the sole beneficiary ought to be declared invalid by analogy with the statutory rule disqualifying attesting witnesses from benefiting under a will.

Arguments

Mr Warwick for the appellant submitted that all four conditions in section 9 must be satisfied, that there is no judicial discretion to override them, and that “direction” required something more active than passive acquiescence. He argued the judge’s finding that “Anne stepped in” begged the question; there was no evidence of any request, assent, nod or word from Martin.

Mr Buttimore for the respondent submitted that Martin’s lack of protest or objection, combined with his wish to make a will and failed attempt to sign personally, could amount to an implicit direction by conduct.

Judgment

Lord Justice Lewison (with whom Hughes and Maurice Kay LJJ agreed) allowed the appeal. He began from the statutory language of section 9(a) of the Wills Act 1837, observing that it provides two alternative modes of signing: personal signature, or signature by another in the testator’s presence and by his direction. Mere signing in the testator’s presence is insufficient; the signing must be at his direction.

Reviewing the authorities (Parker v Parker, Jenkins v Gaisford, Todd v Thompson, In b. Marshall, Inglesant v Inglesant, and Fulton v Kee), Lewison LJ held that while a direction need not be verbal and may be manifested by conduct (including signs or gestures), there must be some positive and discernible communication by the testator. He rejected Lord MacDermott’s tentative obiter suggestion in Fulton v Kee that a direction might be implied from a negative or passive attitude, finding it unsupported by authority and inconsistent with the statute’s anti-fraud purpose.

Applying this test, the evidence did not establish any positive communication by Martin directing Anne to sign. The judge’s finding that Anne “stepped in, took the pen, and signed” did not, in law, establish a direction. Martin was fully alert and capable of communicating, yet there was no evidence he asked Anne to sign, nodded assent, or otherwise indicated his wish. A mere wish to direct, or passive allowance, was insufficient. The fact Anne was the sole beneficiary made it even less safe to assume a direction. The earlier 2002 will (previously suppressed by Hanora) was admitted to probate in solemn form.

As the appeal succeeded on the first ground, the second ground did not arise, although Lewison LJ echoed the trial judge’s view that it is undesirable for beneficiaries to execute a will in their own favour and invited Parliament to consider reform.

Implications

The decision confirms that under section 9(a) of the Wills Act 1837, a signature at the testator’s direction requires a positive and discernible communication (verbal or non-verbal) by the testator that he wishes the will to be signed on his behalf. Passive acquiescence, or a mere unexpressed wish, is insufficient. The communication may be by words, a nod, or other signs, but something active must be manifested.

The judgment emphasises that the formalities of section 9 are strict, exist to guard against fraud, and admit of no judicial discretion to overlook non-compliance, however sympathetic the circumstances. The court’s concern is heightened where the putative signatory is the sole beneficiary.

The decision matters to probate practitioners and those advising terminally ill or incapacitated testators: best practice is to ensure attestation clauses record any signature by another, that the will was read over, and that the testator understood and directed the signing. The court’s observation that Parliament should consider barring beneficiaries from signing wills in their own favour flags a recognised but unresolved policy concern. The decision does not disturb the principle that a direction may be given non-verbally, and leaves open how little communication, short of passivity, may suffice.

Verdict: Appeal allowed. The disputed 2004 will was held not to have been validly executed under section 9(a) of the Wills Act 1837, as the evidence did not establish any positive communication by the deceased directing Anne Liston to sign the will on his behalf. The earlier 2002 will was admitted to probate in solemn form.

Source: Barrett v Bem [2012] EWCA Civ 52