The High Court confirms that a Will signed by a beneficiary is valid

In a recent judgment in the case of Barrett -v- Bem the High Court ruled that a Will was valid, even when signed on behalf of the testator by his sister, who stood to inherit his entire estate as a result.

Facts

After Mr Lavin died in 2004, his sister (Anne) produced a Will that appeared to have been made by Mr Lavin just hours before his death. The Will, which left his entire estate to Anne,  was witnessed by two of the nurses who had cared for Mr Lavin in his final days.  Mr Lavin's relations disputed the validity of the Will.  In the initial hearing, it was shown that the signature on the Will was not Mr Lavin's, and so the Will was found to be void. However, Anne appealed on the basis that either Mr Lavin signed the Will with Anne's support, or that Anne had signed the Will at the direction of Mr Lavin. By the time of the retrial Anne had died, so the key testimony came from the two nurses who witnessed the signing the Will and Anne's daughter Hanora, who was also present at the time the Will was signed.

The law

Section 9 of the Wills Act 1837 ("the Act") gives the requirements for the execution of a valid Will. A Will must be either signed by the testator (the person making the Will) or by some other person in the presence and at the direction of the testator. The Act states that the testator should acknowledge the signature on the Will where it is signed by someone else. Those representing the family members who opposed the validity of the 2004 Will argued that Mr Lavin should have acknowledged the signature but did not, and that a Will should be void when signed by a interested party.

Acknowledgement

Mr Justice Vos, giving the judgment, concluded that as the witnesses had seen Mr Lavin give directions for the Will to be signed there was no need for Mr Lavin to then acknowledge the signature in the presence of the witnesses.

Interested party

Section 15 of the Act says that where a Will provides for a gift or legacy to one of those parties who witness the execution of the Will, the gift is null and void. The Act says nothing of circumstances where a beneficiary actually signs the Will. It was strongly argued that if the intention was for a gift to be void when a witness is a beneficiary, it must almost go without saying that the Will should be void where the beneficiary actually signs the Will on behalf of the testator.  However, Mr Justice Vos decided that he could not import wording into the legislation that did not exist. He concluded that even though there was a rule preventing witnesses from benefitting from the Will, this did not mean the signatory could not be a beneficiary.

Judgment

While acknowledging that these were extraordinary circumstances, Mr Justice Vos decided that the Will should be upheld. He considered that the Will reflected the true intentions of Mr Lavin, and that there was nothing in legislation or case law that would justify voiding the Will.


Comment

Mr Justice Vos was trying to give effect to his interpretation of the true intentions of Mr Lavin. However, in reaching this decision, he had to stretch the boundaries of law and policy to the limit. The argument that there was no need for Mr Lavin to acknowledge the signature in the circumstances may appear reasonable, but it is questionable whether this interpretation of the law survives a logical analysis of the wording of the Act.

There is also the matter of public policy to consider. Mr Justice Vos was also asked to find the Will to be void on the grounds that it would be contrary to public policy to hold otherwise. In the proceedings, it was acknowledged that the witnesses to the Will gave their evidence in a manner that did not warrant any credibility. They had become friendly with Anne and her daughter Hanora, who prepared the Will. They were also found to have lied in the initial hearing and deliberately reconstructed events. In addition, it was revealed that Mr Lavin had made an earlier Will 16 months prior to the Will in question, which left Anne nothing. Hanora was shown to have lied to the Court, and had obtained the earlier Will and concealed it from the rest of the family. Anne was shown to have lied about Mr Lavin signing the Will when she had in fact signed it herself. There were allegations from the rest of the family that they had been denied access to Mr Lavin in the months leading up to his death.

In this context, there was arguably a pressing need to find the Will to be void. Given the potential for dishonesty and fraud, and the uncertainty created for future cases, the decision is likely to remain controversial.

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.