The Court of Appeal has declared that a Will executed on a man’s deathbed is invalid, because his sister – the Will’s sole beneficiary – guided his signing hand. John O’Shea, a partner specialising in Wills and Probate at Kidd Rapinet’s Aylesbury office said, “The creation of a valid Will follows very strict rules; both in how it is written and how it is signed and witnessed”.
The exact circumstances of the signing of the Will, just before Mr. Lavin’s death in hospital, have been a matter of dispute. The witnesses and other family members present changed their minds on several occasions. But the Court’s belief – informed by the evidence of handwriting experts – was that Mr 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 his sister “held his hand to steady it while he signed the Will”, but the Appeal Court agreed with the earlier High Court judge that his sister had in fact “stepped in, took the pen, and signed the Will on Mr Lavin’s behalf”.
The crux was of the case was whether Mr Lavin’s sister had signed the Will by the direction of the testator (Mr Lavin). If she had, then the Will could have been judged valid under section 9 of the Wills Act 1837, as amended. The Court 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: “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”. The Court further found that “the mere facts that Mr Lavin wanted to make a Will and had tried and failed to sign it personally are insufficient to amount to a direction to his sister to sign the Will on his behalf”.
John O’Shea comments, “Leaving an invalid Will is virtually the same as leaving no Will at all and can mean that a person dies intestate, and as such the distribution of their estate may well not proceed in the way that they would have wanted.”
If you would like assistance in planning and writing your Will, call the contact for your local office for further information:
- Aylesbury: John O’Shea (01296 432541)
- Farnham: Rebecca Panton (01252 713242)
- High Wycombe: Gurvinder Sehra (01494 535321)
- London: Rosalind Hallifax (020 7024 8030)
- Maidenhead: Alex Norris (01628 621301)
- Slough: Ron Kerslake (01753 532541)