February 06, 2012
The Court of Appeal has ruled in the case of Barrett v Bem and Ors that there must be more than passive acquiescence on the part of a testator if a Will is to be valid where it is claimed to have been signed by another at their direction.
The requirements for the formal validity of a Will make it possible for a document to be valid where the testator has directed another to sign it on their behalf. In this case, the deceased, Martin Lavin, was in hospital and unable to sign the Will due to his ill health, so his sister, Anne, signed it. Anne argued that she had done so at her brother’s direction. However, one of his nephews contended that this was not the case and that accordingly Will was invalid.
Lord Justice Maurice Kay said in his judgement that “the testator must make some positive communication of his desire that someone else should sign the will on his behalf.” He went on to confirm that “Communication may be non-verbal but in my judgment there must be more than passive acquiescence in someone else’s actions.”
He concluded “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 evidence fell short of establishing any positive communication by Martin expressing a direction or instruction to Anne.”
