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'Positive communication' required for validity of deathbed wills, court rules

1 February 2012

A deathbed will wasn’t properly executed and should be held invalid, the Court of Appeal has ruled in a decision reminding judges to apply strictly the formality requirements in the Wills Act 1837.

The testator, Martin Lavin, died in hospital within hours of making a will naming his sister Anne as sole beneficiary, signed by her at his direction, it appeared.

Mr Justice Vos initially upheld the claim by one of Martin’s nephews that the will hadn’t been signed by Martin, before ruling in a second trial that the will had been properly made under Martin’s direction.

Overturning Vos J’s findings, Lord Justice Maurice Kay found in the “troubling case” of Barrett v Bem and Ors [2012] EWCA Civ 52 that “there was insufficient evidence to support the judge’s ultimate conclusion that Anne signed the will at Martin’s direction”.

For a deathbed will to be valid, the appeal judge said, “the testator must make some positive communication of his desire that someone else should sign the will on his behalf”.

“Communication may be non-verbal,” he continued, “but in my judgment there must be more than passive acquiescence in someone else’s actions.”

Here, the judge said, Anne “stepped in and took the pen” when Martin was unable to hold it, without there being any evidence that her dying brother had positively communicated his desire that she should.

“The court should not find that a will has been signed by a third party at the direction of the testator unless there is positive and discernible communication (which may be verbal or non-verbal by the testator that he wishes the will to be signed on his behalf by the third party,” Maurice Kay LJ.

He concluded: “The evidence fell short of establishing any positive communication by Martin expressing a direction or instruction to Anne.”

The disputed will was handwritten by Anne’s daughter Hanora when the two visited Martin the day he died. Anne has since died too.

Hanora’s case was that her uncle had signed the will himself, having been asked by a staff nurse who witnessed the will whether he “knew what he was doing”.

This was later disproved by a handwriting expert during the first trial, who “was entirely satisfied that Martin did not sign the will”.

Another nurse who acted as the second witness could not be traced at the time but she later made a statement that either Anne or Hanora “held Martin’s hand to steady it while he signed the will”.

This formed the basis of the second trial where Hanora argued that the will was signed under Martin’s direction after she latterly remembered her mother “holding Martin’s hand or wrist to stop it shaking”.

The first nurse also amended her initial statement to this effect, so that Martin’s signature would now be regarded as a “guided hand” one, where the will is signed not by the testator but under his direction.

Anne was represented by Hatch Brenner LLP, a Norfolk law firm which recently set up Family Fundamentals, a service jointly run with IFA Lucas Fettes and accountants Larking Gowen to offer a full range of private client legal and financial services.

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Vulnerable Clients Wills, Trusts & Probate