Life Long Law

Barrett v Bem – Guided signatures to execute wills

Martin Lavin was a childless bachelor who died in hospital in 2004. Three hours before his death he executed his last Will leaving his whole estate to his sister Anne Liston. His previous will left his estate to his nephews and nieces. Despite his illness Mr Lavin was not mentally incapable. 

The will was drafted by his niece, daughter of his sister Anne. Both women were present when the will was signed. The attesting witnesses were two staff nurses. 

The Court of Appeal has now handed down its judgment in Barrett v Bem, deciding whether Mr Lavin’s 2004 will is valid.  After receiving evidence from hand writing experts, the Court of Appeal believed that Martin Lavin could not have signed the will unaided. Due to his illness, his hands would not stop shaking. 

Whilst at one stage it was claimed that Anne "held his hand to steady it while he signed the will", the Court of Appeal has decided Anne had "stepped in, took the pen, and signed the 2004 Will on Martin's behalf".

The issue to be decided was whether Anne had signed the will under the direction of the testator. If she had, the will would be valid. 

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”. The Court needs “positive and discernible communication” from the testator that he wishes a third party to sign his will on his behalf. The 2004 will was therefore declared invalid and the earlier will recognised as Mr Lavin’s last will. 

In light of this case we would advise that whilst it is possible to have a valid will signed on behalf of a testator incapable of signing it, the will should include a properly prepared attestation clause. This should clearly state the circumstances in which the will was signed - DIY wills will not include this. 

If you would like to make a will or advice on your existing will, please contact one of our specialist solicitors on 0800 840 4929.