Barrett v Bem & ors [2012] EWCA Civ 52

Analysis

Martin Lavin (the testator) died on 11 January 2004 in Hammersmith Hospital leaving a will in which he left everything to his sister Anne Liston whom he also appointed executor (the will). Anne died on 04 November 2004 having obtained probate of the will in June 2004. Her daughter, Hanora Bem was appointed her executor. Hanora wrote out the will at Hammersmith Hospital on the day of the testator’s death. The testator was alleged to have signed the will at approximately 3.30pm on the date of his death. It was purportedly witnessed by two staff nurses.

In May 2007, proceedings were brought by another sister of the testator. She died before they were concluded and was replaced as claimant by her son Michael Barrett. Expert evidence was adduced by Michael, which stated that the possibility of the signature on the will being that of the testator could be ‘realistically disregarded’. On 09 October 2009, Mr Geoffrey Vos QC sitting as a deputy judge of the High Court pronounced against the validity of the will on the grounds that the testator had not signed it.

In late October 2009, following the judgment of Mr Vos QC, the witnesses to the will signed statements to the effect that they recalled that either Anne or Hanora had steadied the testator’s hand while he was signing the will. This was followed by a new statement from Hanora in which she stated that she recalled Anne steadying the testator’s hand as he signed the will. On 04 March 2010, the Court of Appeal (Jacob, Wall and Rimer LJJ) ordered a retrial before Vos J (as he had become).

On the retrial, Michael continued to plead that the will had not been signed by the testator and was therefore invalid. Handwriting expert reports for both Michael and Hanora came to the view that the signature on the will was not that of the testator, either by himself or with assistance. Hanora gave evidence that although she could not recall the exact manner in which the testator and Anne had signed the will ‘between the two of them they signed the will’. Since the first trial of the matter, a previous professionally drafted will of the testator from 2002 had come to light. Vos J found that Hanora had been concealing this will from the parties since 2004 and had concealed it from the court. She had also concealed documents relating to the size and extent of the testator’s estate. One of the nurses who had witnessed the will gave an account of Anne assisting the testator which conflicted with her evidence at the first trial. The other witness to the will gave evidence for the first time to the effect that either Anne or Hanora had steadied the testator’s hand when he signed it.

Vos J gave judgment following the retrial on 19 May 2011. He came to the following conclusions:

1. (i) The evidence of the witnesses to the will was not reliable as one of the witnesses was attempting to assist Hanora and the other was mistaken in her recollection. Hanora had told the truth when recollecting that ‘between the two of them’ the testator and Anne had signed the will.
2. (ii) Hanora’s pleading that the testator had ‘signed’ the will was adequate to encompass a case where he had directed the will be signed on his behalf pursuant to the Wills Act 1837.
3. (iii) The expert evidence pointed clearly towards the testator having played no active part in the signing of the will. He therefore found that even if the testator had held the pen in his hand at some point he did not make a sufficient contribution to the signing process for the will to have been signed by him.
4. (iv) There was evidence on which he could properly conclude that Anne signed the will at the testator’s direction. It was now common ground between all three living persons present at the signing that Anne played a part. It was also common ground that the testator had tried to sign the will but had failed because he was shaking too much.
5. (v) He was entirely satisfied that following the testator’s failure to sign Anne stepped in, took the pen and signed on his behalf. By his conduct the testator had directed Anne to sign the will for him.
6. (vi) Section 15 Wills Act 1837 only made a gift to a beneficiary void if that beneficiary was an attesting witness to a will. It did not cover the unusual situation where a beneficiary signed for a testator at his direction. Accordingly, he could not properly find that the will was void.

With the permission of Lloyd LJ, Michael appealed Vos J’s decision on two grounds:

1. (i) The facts found did not amount in law to a direction to Anne to sign the will on Martin’s behalf.
2. (ii) Since the signature was appended by the sole beneficiary under the will, it ought to be declared invalid on the grounds of public policy by analogy with s15 Wills Act 1837.

Held (allowing the appeal)

1. 1. It was not Hanora’s case at the retrial that Anne signed the will at the testator’s direction and there was no evidence at all that the testator had said anything to Anne during the process of signing the will, despite the fact that he was fully alert and aware of what was going on.
2. 2. All four of the conditions in s9 Wills Act 1837 must be satisfied before a will is validly executed, there is no discretion on the part of the court to override compliance with the conditions and since the validity of a will arises when a testator is dead there are powerful policy reasons for insisting on their fulfilment. The starting point for understanding the requirements must be the words of the section itself.
3. 3. In order for a testator to direct that a will is signed by another person something more than acquiescence or passivity is required. Something in the nature of an instruction is necessary. The clear thrust of Parker v Parker (1841) Milward 541 was that a testator must make some positive communication of his desire that someone else should sign a will on his behalf. What is more, In b. Marshall (1866) 13 LT 643 made clear that there must be something to bring home to the attesting witnesses that a testator is adopting a third party’s signature as his own.
4. 4. While a testator’s direction to a third party to sign on his behalf could be non-verbal, Lord MacDermott’s obiter comments in the Irish case of Fulton v Kee [1961] NI 1 that a direction could be implied from a negative rather than a positive attitude of a testator was not supported by authority and was wrong in principle. It is not open to the court to find that a will has been signed by a third party at a testator’s direction unless there is a positive and discernable communication (verbal or non-verbal) by a testator that he wishes the will to be signed on his behalf by a third party.
5. 5. There was no finding by the judge that the testator asked Anne to sign on his behalf and there would have been no evidence to support such a finding. There was no evidential change at the retrial to support a departure from the judge’s finding at the first trial that there was no evidence whatsoever that Anne was asked to sign the will for the testator. The mere fact that the testator wanted to sign the will and had failed was insufficient to amount to a direction to Anne to sign the will on his behalf. The fact that the testator was able to ask Anne to sign the will and did not pointed against the conclusion that Anne signed the will at his direction. The evidence fell short of establishing any positive communication (verbal or non-verbal) by the testator expressing a direction or instruction to Anne to sign the will.
6. 6. In the circumstances, the second ground of appeal did not arise. However, it was plainly 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 could not happen in the future.

JUDGMENT LORD JUSTICE LEWISON: [1] Did Martin Lavin (Martin) who died on 11 January 2004 make a valid will on the day of his death? That is the issue raised by this appeal. It is, however, a troubling case. The case has been tried twice: once by Mr Geoffrey Vos QC in October 2009 [2009] …

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