Barrett v Bem & Ors

Under section 9(a) of the Wills Act 1837, a testator may sign personally or direct another person to sign on the testator’s behalf. Where the testator directs the signature and the other person signs in the presence of the witnesses, no separate acknowledgement is required. Where the testator signs personally with assistance, there must be a positive and discernible physical contribution to the signing process. A direction may arise by conduct and need not be expressed in words. A beneficiary who signs at the testator’s direction is not thereby disqualified under section 15, but the circumstances require especially careful scrutiny of knowledge and approval.

The claimant challenged the validity of a will made shortly before Martin Lavin’s death, leaving his estate to his sister Anne Liston. The first-instance judgment had pronounced against the will, but the Court of Appeal ordered a retrial after new evidence suggested that Martin’s hand had been assisted during signing.

At the retrial, handwriting evidence showed that the signature was not a guided-hand signature. The court had to determine whether Anne had signed for Martin at his direction, whether Martin knew and approved the contents, and whether the gift to Anne was invalid because she had signed the will in her own favour.

1. Validity under section 9(a). A testator may sign personally or direct another person to sign on the testator’s behalf. If the directed signature is made in the presence of the two witnesses, no subsequent acknowledgement is required.
2. Assisted signature. If the testator signs personally with assistance, the testator must make a positive and discernible physical contribution. Mere passive contact or failure to prevent another person from signing is insufficient.
3. Direction by conduct. A direction to sign may be inferred from conduct. Martin had expressly wished to make the will, had approved its contents, had attempted and failed to sign because of his physical condition, and then allowed Anne to take the pen and sign. Those facts amounted to a direction that Anne sign on his behalf.
4. Findings of fact. The fluent signature and the expert evidence excluded a guided-hand signature. The judge found that Anne signed the will, rather than merely steadying Martin’s hand, and that she did so at his direction.
5. Knowledge and approval. Although the circumstances generated considerable suspicion, including the fact that the beneficiary signed the will and that her daughter had prepared it, the evidence established that Martin knew and approved the contents and intended Anne to benefit. The heightened scrutiny required by Barry v Butlin was satisfied.
6. Section 15. Section 15 rendered a gift void only where the recipient was an attesting witness. The provision could not be extended to a beneficiary who signed as the testator’s agent. No additional public-policy rule invalidated the will or gift.
7. Disposition. The 2004 Will was pronounced valid in solemn form and the claimant’s claim was dismissed. The court reserved the question of costs.

The judgment was a retrial ordered by the Court of Appeal after new evidence emerged following the original decision. The Court of Appeal admitted the new evidence, set aside the substantive orders and remitted the matter for retrial. No neutral citation for that decision is stated in the judgment.