It seems rather obvious that in order for a will to be valid, it primarily needs to be signed by the person making the will, i.e. the Testator. However, what if the Testator is physically unable to sign or even make their mark?
In the recent case of Barrett v Bern and others, the Testator, Martin Lavin was in hospital. Visited by family, it was said that he had expressed a wish to make a will and his niece wrote out a will by hand. The will left everything to the niece’s mother, Anne Liston.
Martin was physically unable to sign the will and Anne stepped in. The evidence is not very satisfactory but it seems that Anne held Martin’s hand. The question is, did Anne simply steady Martin’s hand or did she control the signing? Handwriting experts gave evidence that the signature was not Martins.
The will was contested by the other nieces and nephews who stood to inherit under a previous will. This was not a clear cut case and in fact was tried twice, but the Court of Appeal eventually decided that Martin had not signed the will and neither had he directed Anne to sign on his behalf. If he had clearly directed Anne to sign for him, it would have been sufficient to make the will valid. The witnesses to the will, who were two of the staff nurses, were not able to give evidence, which satisfied the Court.
The moral is that if a Testator cannot physically sign, extreme care needs to be taken to ensure that any signature by another person on the Testator’s behalf will be valid. Evidence should clearly be recorded of the Testator’s directions for such signing and ideally the signatory should not be a beneficiary under the will or anyone likely to gain indirectly from the will.
By far the best precaution, especially when time may be very limited owing to the Testators declining physical or mental condition, is to arrange for a Solicitor to attend to prepare the will and oversee the signing and witnessing. They will be able to put extra precautions in place in these special circumstances, to ensure that the will is an accurate reflection of the person’s wishes and is valid.
For further information please contact a member of our in the Wills & Wealth Planning team on 01625 442100.