You might think this is a slightly odd question.

Doesn’t the person whose Will it is sign it in the presence of witnesses who also sign? The answer, usually, is of course yes the testator/testatrix signs in the presence of 2 witnesses, each present at the same time and that those 2 witnesses also sign.

Despite the intended simplicity of the formalities required by law anyone unfamiliar with probate and probate disputes might be forgiven for thinking any hidden complexities arising out of a particular set of facts might well have been sorted out in the 174 years since the Wills Act 1837 and particularly s.9 of that Act had been brought into force.

Well, apparently not.

Lawyers have for many years argued over things like (a) whether a particular document was a Will or not, (b) what the maker’s signature intended (it has to be intended to give effect to the Will and not be for another reason), whether other documents referred to within the Will can be incorporated into it or not, (c) whether a written name is capable of being a signature for the purposes of s.9 (it can), (d) whether you can sign in a previous or assumed name (you can) or in foreign script (you can do that too) (e) whether a completely handwritten Will commenced with the words “My Will by [Name]…” was sufficient (it was) and many other things too.

Now the Court has had to decide on yet another curious set of circumstances arising at the time a Will was made. In Barrett v Bem [2011] EWHC 1247 Ch (a decision made on 19 May 2011) the testator made a Will in hospital 3 hours before he died leaving everything to his sister. The Will was witnessed by 2 nurses but it was challenged by those entitled on intestacy and was at first pronounced invalid. That was not because the deceased lacked mental capacity. The court found he had capacity and that he knew and approved the contents. However, the Will was at first found invalid because the signature on the Will was clearly not that of the deceased. Those dissatisfied with that result appealed and the Court of Appeal ordered a re-trial. Ultimately the Will was proven valid. Why when the signature was not his?

Under the Wills Act a testator may either sign the Will himself or direct that another person may sign on his behalf. If the testator does direct someone else to sign on his behalf and the other formalities are observed the Will is “signed” by the testator so far as the law is concerned and the Will is valid. But, if the testator chooses, instead of directing someone else to sign for him, to sign it himself but with the assistance of someone else the Will is only validly signed if he makes some positive and discernible physical contribution to the signing process. Abstaining from the signing process isn’t enough.

It can come down to a very close examination of the evidence indeed. In the Barrett v Bem the re-trial resulted in evidence being heard from a large number of new witnesses. It is necessary to be extremely careful. Those interested in saving the Will or overturning it can have massively opposing interests although the evidence of what happened at the Will signing can, on occasions, be genuinely lost in the mists of time or simply be unreliably recalled though without malice. The Court, when faced with these sorts of circumstances, will look at the efforts made by the deceased to sign himself, what happened when he gave up any failed attempts, what did he say or do at that time (if anything), did he hand the pen over or was it taken from him, and of course his state of health at the time but ultimately it will try to give effect to the deceased’s wishes. What is difficult is not the law but applying the law when faced with masses of inconsistent or apparently inconsistent evidence. What was ultimately plain in Barrett v Bem was that when the testator failed the person who actually signed stepped in, took the pen and signed. The act of attempting to sign personally and failing to do so, having expressly said he wanted to make a Will and expressly approved its contents, together with allowing someone else to sign on his behalf, can and should be (said the Court) taken as a direction by conduct to that person to sign the Will in those terms and on his behalf. The Will was therefore pronounced valid at the re-trial.

Here at Ringrose Law we take steps to seek to ensure this sort of complication never happens. But, sadly, it does from time to time. If it does our contentious probate team has years of experience in working out the best solution for you, whether you are the executors, the disappointed or the potentially disappointed beneficiaries. Give us a call or fill in our online questionnaire if you are facing a problem like this or any other problem about someone’s Will. We can help.

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