Barrett v Bem & Ors

For a will to be validly executed under section 9(a) of the Wills Act 1837, a third party who signs for the testator must do so at the testator’s direction. A direction requires positive and discernible communication by the testator, whether verbal or non-verbal. Passive acquiescence, silence, an unexpressed wish, or a failed attempt to sign personally will not suffice.

All statutory formalities for execution are mandatory. The court has no discretion to dispense with them merely because the testator intended the document to take effect as a will.

Martin Lavin died on the day a handwritten will was made. It left his estate to his sister, Anne Liston. At the first High Court trial, the claimant successfully challenged the will because Martin had not signed it: [2009] EWHC 2597.

After fresh evidence from an attesting nurse, the Court of Appeal ordered a retrial. At the second trial, Vos J found that Anne had taken the pen and signed on Martin’s behalf. He inferred a direction from Martin’s failed attempt to sign, his approval of the will, and his allowing Anne to sign. He pronounced for the disputed will: [2011] EWHC 1247; [2011] 3 WLR 1193.

The claimant appealed on whether those facts amounted to a direction under section 9(a) of the Wills Act 1837, and whether a sole beneficiary could validly execute a will in her own favour.

Appeal allowed unanimously. Lewison LJ, with whom Hughes and Maurice Kay LJJ agreed, held that the disputed will had not been validly executed.

1. All four requirements in section 9 of the Wills Act 1837 must be fulfilled. The statutory formalities are mandatory and the court has no residual discretion to validate a will simply because it reflects the deceased’s intentions.

2. Section 9(a) provides two alternatives: signature by the testator personally, or signature by another person in the testator’s presence and at the testator’s direction. The latter requires more than the testator’s presence, acquiescence or passivity. A direction is an instruction and must be communicated positively and discernibly, although communication may be non-verbal.

3. Authorities concerning acknowledgment of a signature under section 9(c) could not be directly transferred to the distinct requirement of a direction under section 9(a). The court accepted the principle in Parker v Parker (1841) Milward 541 that conduct may communicate a direction. It rejected a tentative observation in Fulton v Kee [1961] NI 1 insofar as it suggested that a direction might arise from a merely negative attitude.

4. Martin’s wish to make the will, his approval of its contents, his failed attempt to sign, and his failure to object when Anne took the pen did not establish that he instructed her to sign. He was alert and able to communicate, but there was no evidence of a request, assent, gesture or other positive communication. The will was therefore invalid.

5. The court pronounced for Martin’s 2002 will and admitted it to probate in solemn form. The public-policy ground concerning execution by a sole beneficiary did not arise. The court nevertheless observed that such execution was plainly undesirable and that Parliament should consider legislative reform.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal and reversed the finding that the 2004 will had been validly executed: [2012] EWCA Civ 52.
• High Court, Chancery Division: On retrial, Vos J pronounced for the disputed 2004 will, finding that Anne Liston signed it at Martin Lavin’s direction: [2011] EWHC 1247; [2011] 3 WLR 1193.
• High Court, Chancery Division: At the first trial, Mr Geoffrey Vos QC found that Martin had not signed the disputed will: [2009] EWHC 2597. A subsequent appeal based on fresh evidence resulted in a retrial; its citation is not stated in the judgment.