A Court of Appeal judgment in a family dispute over a death-bed Will which has run for 8 years was handed down on Monday, together with a call from Lord Justice Lewison for Parliament to end the uncertainty over "guided-hand" signatures. The case serves as a reminder that in order to be valid, a Will must be properly executed.
Sadly, each year a large number of Wills are found to be invalid because the person making the Will (the testator) fails to execute it properly. Sometimes this is because due to failing health the testator has difficulty signing. However, it can simply be that the testator is not fully aware of the rules relating to the proper execution of a Will, or their significance.
In this case, 69 year old Martin Lavin "signed" a new Will from his hospital bed a few hours before he died leaving his whole estate to his sister Anne. The Will had been handwritten by Anne's daughter Hanora and was witnessed by two of the hospital nurses. The case turned on whether the Will had been validly executed by Mr Lavin as the Court heard that he was too weak in the hours before his death to have signed the Will. Evidence was heard from Hanora and one of the nurses who had acted as a witness that he had signed the Will without any help. However, a handwriting expert concluded that it was not Mr Lavin's signature. The second nurse subsequently gave evidence that Anne had guided her brother's hand when he signed the Will, but this was also rejected by the Court who found the evidence unreliable. The Court finally concluded that Anne had herself signed the Will but that there was no evidence that Mr Lavin had asked to sign it on her behalf. As such, the Will was found to be invalid. The estate passed to other family members.
The rules relating to the execution of a Will are rigid and must be carefully adhered to. They are set out in the Wills Act 1837 and broadly require that:
- The testator must sign the Will, or another person must sign it in his presence and at his direction.
- The testator must intend by his signature to give effect to the Will.
- The signature must be either made or acknowledged in the presence of at least two witnesses present at the same time.
- Each witness must sign the Will, or acknowledge his signature, in the presence of the testator.
If the testator cannot sign the Will himself, another can do so provided that it is at his direction. However, the Probate Registry will in such a case also require evidence that the testator had full knowledge of the Will at the time it was executed. This would usually be achieved by the Will being read over to him before he signs it and the fact that this had been done would be confirmed in the execution clause.
In all such cases, the best advice is to follow the rules set out in the Wills Act 1837 carefully. If you have instructed a solicitor to prepare the Will, he or she will either oversee the execution of the Will or will provide you with clear guidance. If there is any risk that the execution of the Will might be challenged later, it would be helpful to keep statements from the witnesses or anyone else present at the time. It can be hard to recall events precisely years later and the conflicting and unreliable evidence from the witnesses was clearly a factor which contributed to the length of time the Lavin case has run.