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06th February 2012

The Importance of Signing of Wills

Two recent cases have emphasised the importance of signing a will correctly.

Exactly how a will should be signed is governed by s9 of the Wills Act 1837. This says:

“No will shall be valid unless-

it is in writing, and signed by the testator, or by some other person in his presence and by his direction;

and

it appears that the testator intended by his signature to give effect to the will; and the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; …”

In the case of Marley v Rawlings the Court of Appeal held that the will was not valid because it did not comply with section 9 (b). In that case Mr and Mrs Rawlings had wills drawn up in which they each left everything to the other. If they had both died they left everything to Mr Marley whom they treated as if he was their son. They did have two sons but they did not want to leave them anything.

When the time came to sign the wills Mr Rawlings signed the will for Mrs Rawlings and Mrs Rawlings signed that for Mr Rawlings. When Mrs Rawlings died this mistake was not noticed. It was not until Mr Rawlings died that it was discovered. The will Mr Rawlings signed certainly reflected his wishes. But it was held that it was not the will he intended to give effect to by signing it. The will he had intended to give effect to was his own will. The will he had signed was his wife’s.

It seems a harsh decision but as the judge pointed out there is no provision in English law allowing a will to be valid if the signing of it has been done almost but not quite correctly.

The second case, Barrett v Bem, was also a decision of the Court of Appeal. There was a slightly complicated background to the appeal. There had been one trial followed by a retrial. Between the two the evidence of some of the parties about what happened when the will was signed changed.

The will concerned was that of Martin Lavin who died on the same day the will was signed. Mr Lavin had tried to sign the will himself but because his hand was shaking he was unable to write his signature. The judge found that his sister, Ann, stepped in and signed the will on Mr Lavin’s behalf. Ann was also the sole beneficiary of the will.

It was argued that the will was signed in accordance with section 9 (a), that Ann had signed at Mr Lavin’s direction. However the judge found that although Mr Lavin was unable to sign he was able to communicate and he had not made any direct request to Ann to sign the will on his behalf. The judge thought that Mr Lavin’s failure to object to Ann doing so was sufficient to say that she had signed at his direction. The Court of Appeal disagreed, saying, "the testator must make some positive communication of his desire that someone else should sign the will on his behalf".

The Court also called for legislation to prevent a beneficiary under a will from being involved in its signing. At present a beneficiary who witnesses a will loses their benefit under the will. But there was no rule of law which prevented Ann from signing Mr Lavin’s will on his behalf – if he had expressly asked her to do so.

For further information, please contact Emma Satterly on emmasatterly@hewitsons.com or on 01223 532725

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