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MICHAEL BARRETT v HANORA BEM & 6 ORS

The court should not find that a will had been signed by a third party at the testator’s direction unless there had been positive and discernible communication to that effect, and it was good practice that the attestation clause should show that the will was signed by a third party signing his own or the testator’s name, by the direction and in the presence of the testator, and that it had been read over to the testator and that he appeared to have understood it. The court made an obiter comment that it was undesirable that beneficiaries should be permitted to execute a will in their favour in any capacity.

6 February 2012

The appellant (X) appealed against a decision ((2011) EWHC 1247 (Ch)) that the deceased’s will had been validly executed in line with the Wills Act 1837 s.9(a). In the first trial X had successfully argued against the validity of a will allegedly made by the deceased (Z) on the day he died, on the basis that he had not signed it in accordance with s.9(a). A second trial occurred as new evidence came to light that Z’s shaking hand had been steadied by Z’s now deceased sister and sole beneficiary of the will (S), or by her daughter, the first defendant, (Y), when he signed it. Y gave evidence that S had gone over to Z when his hand was shaking and that between the two of them they signed the will. No evidence was proffered that S signed the will at Z’s request, that Z had said anything to S, or that anything had been said to Z during the process. The judge rejected the evidence that Z had signed the will with S’s assistance and held that the will had been validly executed in...

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