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Signing a will and section 9 of the Wills Act 1837
Decisions on the formalities of the execution of a will usually turn on whether the witnesses were jointly present when the testator signed or acknowledged. In the rather unusual case of Barrett v Bem  EWCA Civ 52, the point in issue was whether the will was signed by the testator for the purposes of section 9 of the Wills Act 1837. The Court of Appeal reversed the first instance decision of Mr Justice Vos and found the will in question invalid on the basis that it had not been signed at the direction of the testator.
The facts are extremely unusual but the Court of Appeal made some comments on good practice.
The testator, Martin, made a will in hospital three hours before he died leaving everything to his sister, Anne. The will was witnessed by two nurses. The will was challenged by those entitled on intestacy and was originally pronounced invalid by Vos J. He found that Martin had capacity and knew and approved the contents of the will. However, he found that the signature was clearly not Martin’s.
Anne having died, her daughter, Hanora, appealed. She and the two nurses changed their story and claimed that the signature was a ‘guided’ signature. They claimed that Anne had helped Martin sign because his hand was shaking too much for him to manage alone. The handwriting expert said that the possibility that this was a guided signature could be ‘realistically disregarded’. It was simply too fluent and showed no signs of stopping and starting.
Vos J considered the most likely explanation was that Anne actually signed the will at Martin’s direction or with Martin touching her hand in some light or symbolic fashion. A signature on behalf of the testator had not been pleaded and was contrary to the version of events the witnesses had given, although Hanora had edged close to this by saying of her mother ‘between the two of them they signed the will’.
Section 9 of the Wills Act 1837 (as amended) provides that no will shall be valid unless:
(a) it is in writing and signed by the testator, or by some other person in his presence and by his direction;
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either: (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary. The issue was subsection 9(a): had the will been signed at Martin’s direction?
Vos J found that, when Martin failed to sign the will himself, he must have allowed Anne to take the pen from him and apply his name to the paper. There was no evidence that he said anything at that stage, but the act of attempting to sign personally and failing to do so, having expressly said he wanted to make a will and expressly approved its contents, together with allowing Anne to sign on his behalf, could and should be taken as a direction by conduct to Anne to sign the will in those terms on his behalf.
The Court of Appeal decision
The Court of Appeal held that the statutory requirement in section 9(a) that there be a direction to sign connotes a more active role from the testator than a mere ‘acknowledgment’ of an earlier signature under section 9(c). More than mere acquiescence or passivity is necessary; something in the nature of an instruction is required. Per Lord Justice Lewison at paragraph 36: ‘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.’
There must be something to make it clear to the attesting witnesses that the testator was adopting the third party’s signature as his own. The obiter statement in Fulton v Kee  NI 1 that a direction could on occasion be implied from a negative rather than a positive attitude from the testator was not correct in principle. The Court of Appeal said that it was ‘of course’ good practice to amend the attestation clause to show that the will was signed by a third party signing his own or the testator’s name, by the direction and in the presence of the testator, and that it had been read over to the testator and that he appeared to have understood it.
There had been no such finding of fact in the first or second trial, nor was there evidence to support a finding that Martin had asked Anne to step in and sign the will, or that she had asked him if she should sign before she assisted. The judge had found in the second trial that Anne ‘stepped in’ and signed the will. The only evidential change in the second trial was Hanora’s evidence that, between the two of them, Martin and Anne signed the will. That was not evidence that Martin requested Anne to sign the will on his behalf. The fact that he wanted to make a will and had tried and failed to sign it personally was insufficient to amount to a direction to Anne on his behalf, especially since Martin was aware of what was going on and able to communicate his wishes.
Similarly, his lack of objection to Anne’s signing the will could not be taken as an implicit direction, or as a wish for Anne to sign on his behalf. Neither could it be assumed that he would have directed Anne to sign the will, given that she was the sole beneficiary. The most that could be said was that Martin wordlessly allowed Anne to sign the will. The evidence fell short of establishing any positive communication by Martin expressing a direction to Anne to sign the will.
While it is possible under the law as it stands for a beneficiary to witness a will, since section 15 of the Wills Act 1837 applies only to beneficiaries who witness a will, it is clearly undesirable. The Court of Appeal recommended that parliament consider changing the law to ensure that it could not happen in the future.
Professor Lesley King, College of Law
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