This article provides an overview of the facts and decision in Barrett v Bem & Others [2012] EWCA Civ 52, a decision on the formal requirements for the valid execution of wills under S9 of the Wills Act 1837. The case clarifies the meaning of “direction” when a will is signed by someone other than the testator.
Background
The Wills Act 1837 sets out strict formalities for the valid execution of wills. S9(a) requires that a will be signed by the testator or by some other person in the testator’s presence and by the testator’s direction. The requirements are mandatory and are designed to protect against fraud and undue influence. However, disputes sometimes arise as to whether these requirements have been properly satisfied, particularly where the testator is unable to sign and a third party signs on their behalf.
Barrett v Bem – Facts
Martin Lavin, the testator, died on 11 January 2004. On the day of his death, a disputed handwritten will left his entire estate to his sister Anne Liston and appointed her as executor. The will was said to have been witnessed by two nurses. Probate was granted to Anne, but the deceased’s nephew Michael Barrett challenged the validity of the will.
At first instance, the court found that the will had not been validly signed by the testator. Subsequent witness statements suggested that, although the testator attempted to sign, his hand was shaking and either Anne or her daughter steadied his hand. At a retrial, the judge found that Anne had in fact signed the will herself, but there was no clear evidence that the testator had given a positive direction for her to do so. The validity of the will was upheld and the case was appealed to the Court of Appeal.
Barrett v Bem – Decision
The Court of Appeal allowed the appeal, holding that the statutory requirement for a will to be signed by another person “by the testator’s direction” demands a positive and discernible instruction from the testator. The key points from the decision were:
- The word “direction” in section 9(a) of the Wills Act 1837 requires more than mere acquiescence or passivity; there must be a clear, positive communication from the testator authorising the third party to sign.
- The evidence did not establish that the testator gave any such direction to Anne to sign the will on his behalf. The fact that the testator attempted to sign, but failed, was not sufficient to infer a direction.
- The Court also noted the public policy concern that allowing a sole beneficiary to sign a will in their own favour could undermine the safeguards intended by the Wills Act.
As a result, the 2004 will was held to be invalid, and the appeal was allowed.
Conclusion
The decision in Barrett v Bem demonstrates the importance of strict compliance with the formal requirements under S9 of the Wills Act 1837. The Court of Appeal’s interpretation of “direction” as requiring a clear and positive instruction from the testator reinforces the protective purpose of the legislation. The case also highlights the need for careful record-keeping and clear evidence where a third party is asked to sign on behalf of a testator. Practitioners should ensure that any such direction is explicit and properly documented to avoid disputes.
If you have subscribed to our Quiz Membership 2025, please find this article’s quiz here. You must be signed into the partner area of our website to access this.
