Appeal court overturns deathbed will where beneficiary guided testator’s hand

2 February 2012

The England & Wales Court of Appeal has declared that a will executed by Martin Lavin on his deathbed is invalid, because his sister – the will’s sole beneficiary – guided his signing hand.

The litigants in the case (Barrett v Bem [2012] EWCA Civ 52) are the immediate descendants of Mr. Lavin and his sister Anne, both now dead.

The exact circumstances of the signing of the will, just before Mr. Lavin’s death in hospital in 2004, have been a matter of dispute. The witnesses and other family members present have changed their minds from time to time. But the EWCA’s belief – informed by the evidence of handwriting experts – is that Martin Lavin could not have signed the will unaided. Apparently he was so ill that his hand would not stop shaking. It had at one stage been claimed that Anne “held his hand to steady it while he signed the will”, but the Appeal Court agreed with the earlier High Court judge that Anne had “stepped in, took the pen, and signed the 2004 Will on Martin’s behalf”.

The crux was thus whether Anne had signed the will by the direction of the testator; if she had, then it could be judged valid under s.9 of the Wills Act 1837 as amended.The EWCA could find no binding authority on what the drafters of the 1837 Act might have meant by “the direction of the testator”, so it created its own interpretation. The key passage in its judgement was stated by Lord Justice Lewison: “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”.

In this case, he said, “the mere facts that Martin wanted to make a will and had tried and failed to sign it personally are insufficient to amount to a direction to Anne to sign the will on his behalf … In my judgment some positive communication is required in order to amount to a valid direction.”

Accordingly he declared the will improperly executed and thus invalid, and ordered Mr. Lavin’s earlier will (which had been concealed by one of the Bem defendants) to be admitted to probate instead.

In a further comment, he called for the law of probate to be amended to cope with situations like Mr. Lavin’s. “It is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity”, he said. “Parliament should consider changing the law to ensure that this cannot happen in the future.”



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