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Cite as: [2012] WTLR 567, [2012] 2 All ER 920, [2012] Ch 573, [2012] WLR(D) 17, [2012] 3 WLR 330, [2012] EWCA Civ 52

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Neutral Citation Number: [2012] EWCA Civ 52
Case No: A3/2011/1533

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT CHANCERY DIVISION
Mr Justice Vos
HC07C01351

Royal Courts of Justice
Strand, London, WC2A 2LL
31 January 2012

B e f o r e :

LORD JUSTICE MAURICE KAY
(PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION)
LORD JUSTICE HUGHES
and
LORD JUSTICE LEWISON

____________________

Between:
MICHAEL BARRETT
Appellant / Claimant
- and -

HANORA BEM
MATTHEW BEM
ALEXANDER BEM
SOPHIE BEM
ETA MEEHAN
BEATRICE O'SHEA
EAMONN BARRETT
Respondent / Defendants

____________________

(Transcript of the Handed Down Judgment of
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____________________

MR MARK WARWICK (instructed by Hatch Brenner LLP) for the Appellant/Claimant
MR GABRIEL BUTTIMORE (instructed by Teacher Stern LLP) for the First Defendant/Respondent
Hearing date : 23 January 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Lewison:

  1. Did Martin Lavin ("Martin") who died on 11 January 2004 make a valid will on the day of his death? That is the issue raised by this appeal. It is, however, a troubling case. The case has been tried twice: once by Mr Geoffrey Vos QC in October 2009 [2009] EWHC 2597 and again by Vos J (as he had by then become) in May 2011 [2011] EWHC 1247 [2011] 3 WLR 1193. The disputed will is in manuscript and purports to have been signed by Martin himself. In the first trial the alleged will was successfully challenged by Michael Barrett ("Michael"), one of Martin's nephews, on the basis that Martin had not in fact signed it. At the second trial the same challenge failed; and the judge pronounced in favour of the disputed will, on the basis that it was signed at Martin's direction by his sister Anne Liston ("Anne") who was also the sole beneficiary under the will. With the permission of Lloyd LJ Michael appeals on two grounds:
  2. i) The facts found by the judge did not amount in law to a direction to Anne to sign the will on Martin's behalf; and

    ii) Since the signature was appended by the sole beneficiary under the will, it ought to be declared invalid on grounds of public policy by analogy with the statutory rule that disqualifies an attesting witness from taking a benefit under the will.

  3. The validity of the disputed will was supported by Hanora Bem ("Hanora") one of Martin's nieces, and the daughter of Anne. Since Hanora was propounding the disputed will the burden of proving that it had been duly executed fell on her. Anne had died by the time of the first trial. The judge heard evidence at the first trial both from Hanora and from Staff Nurse Haris, both of whom claimed to have seen the execution of the will. Hanora's evidence was that she and Anne visited Martin in hospital on the day he died. He expressed a wish to make a will; and Hanora, who had once been a legal secretary, wrote out a will in manuscript. The will left everything to Anne. Hanora told the judge that she explained the contents of the will to Martin and gave it to him to sign. He seemed to read it. He then signed the will and his signature was witnessed by two nurses (who included Staff Nurse Haris). Both Hanora and Staff Nurse Haris said that Martin signed the will himself unaided. Staff Nurse Haris added that before Martin signed the will she checked his alertness and at her request Martin said that he knew what he was doing. The judge was clear in recording that it was not alleged that Anne signed the will on Martin's behalf. It was always Hanora's case that Martin actually signed the will himself. The judge said (§ 43):
  4. "… if … there were evidence that Anne had signed the Will at Martin's direction, it would, I think be open to the court to find in favour of that evidence and uphold the Will, even if Hanora's evidence were to a contrary effect. In this case, however, there is no evidence whatsoever that Anne was asked to sign the Will for him. That makes it impossible, or at least inappropriate, for any such decision to be reached."
  5. The judge concluded, largely on the basis of clear expert evidence on handwriting, that he was entirely satisfied that Martin did not sign the will. He concluded that he could not rely on the contrary evidence of Hanora and Staff Nurse Haris for reasons that he explained in detail. The judge expressed his ultimate conclusion on the issue as follows (§ 53):
  6. "For all these reasons, therefore, it seems to me that the answer to the first issue stated above is that Martin did not sign the Will, but that his name was written by someone else. I am not able on the evidence before me to determine who signed the name or in what circumstances, since no evidence … has been adduced suggesting that another person did sign it."
  7. The judge recorded that the second attesting witness, Staff Nurse Hawadi, had not been traced and had not therefore given evidence. However, following the judgment she was tracked down and made a statement. In her statement she said that either Anne or Hanora held Martin's hand to steady it while he signed the will. She said that she was 100% certain that the pen was in his hand when the will was signed. That led to the Court of Appeal allowing an appeal against the judge's order on the grounds that fresh evidence had been found; and they directed a retrial. The pleadings were amended between the two trials. So far as the pleaded case at the second trial is concerned, paragraph 4 of the Amended Particulars of Claim alleged that "the signature that appears on the 2004 Will is not the signature of the deceased and the Will upon which probate was granted is therefore not the last Will and testament of the deceased." In response to that allegation the Amended Defence and Counterclaim asserted:
  8. "Paragraph 4 is denied and it is averred that the Deceased did indeed sign the 2004 Will, that it was duly executed and witnessed and that it is the last will and testament of the Deceased."
  9. Having said at the first trial that Martin had signed the will unaided, Hanora now changed her evidence. At the second trial she said that she remembered her mother Anne holding Martin's hand or wrist to stop it shaking and to "enable him to sign". In the course of her oral evidence, and in answer to questions from the judge himself, she said that Martin tried to sign the will but could not do so because his hand was shaking so much. As a result Anne came over and "between the two of them they signed the will." She did not know to what extent Martin was able to help with the signature as compared to Anne.
  10. Likewise, Staff Nurse Haris, having said at the first trial that Martin had signed the will unaided, said in her statement for the second trial that she remembered Anne holding Martin's hand in hers to stop the shaking. She made it clear that Anne held Martin's hand; not the pen.
  11. Staff Nurse Hawadi had not given evidence at the first trial. But her evidence at the second trial was also that Martin signed the will himself with his hand being steadied by either Anne or Hanora.
  12. Thus the case advanced by Hanora at the second trial was that Martin signed the will himself, but this time with the aid of Anne in holding his hand to stop it shaking. The signature was thus said to be what is known as a "guided hand" signature. It is pertinent to observe at this stage that both sides instructed eminent handwriting experts (Mr Radley for Michael Barrett and Dr Giles for Hanora), both of whom agreed that that there was "conclusive evidence" that the signature on the will was not produced in the manner alleged by Hanora. Mr Radley gave oral evidence in support of this opinion; and the judge was impressed by his evidence.
  13. The judge made a number of findings about Hanora that were critical of her. He found that she knew about a previous will that Martin had made in 2002 and had concealed that, despite having been ordered to file an affidavit of scripts. He found that Hanora had concealed papers relevant to the estate and had not disclosed them either to Michael or to the court. On the critical question, what happened at Martin's bedside on the day he died, the judge said (§52):
  14. "As I have already mentioned in the chronology above, in answer to questions from me, Hanora was less certain as to the signing on this occasion. She said simply, when I asked her if it was possible that it had happened in some other way apart from Anne steadying Martin's hand, that her mother came over when he tried to sign and his hand was shaking and "between the two of them they signed the will". I found that a powerful and disarming piece of evidence, which to me had a greater ring of truth than anything anyone else said on the point. It clearly implied that Hanora did not really know precisely how the 2004 Will came to be signed, but that she was saying, in effect, that she knew that Martin had tried to sign it, and then her mother had come over, and that it had ended up signed."
  15. Commenting on Staff Nurse Haris' evidence the judge said (§ 56):
  16. "Nurse Haris has given as certain an account about recalling seeing Anne steady Martin's hand when he signed the 2004 Will, as she gave when she said expressly in evidence on oath in October 2009 that Anne had not held Martin's hand when he was signing. Her evidence at this trial was also inconsistent in various other respects with her previous evidence, and she gave an unimpressive and contradictory account about how she had come to hear about Nurse Hawadi's evidence in the first place."
  17. Although Nurse Haris was given an opportunity to express any uncertainty about her recollection, she rejected those opportunities; and stuck to her story that she remembered Anne holding Martin's hand to stop it shaking and that it was not possible that Anne was also holding the pen. The judge concluded that Staff Nurse Haris was not a reliable witness, for reasons that he gave.
  18. The judge next recorded Staff Nurse Hawadi's evidence. He said (§ 59):
  19. "It is undoubted that Nurse Hawadi was the first to recall that Martin's hand was shaking and that he had tried but been unable to sign 2004 Will himself when he was given the pen. That part of her evidence I found compelling. But she was just too certain, dogmatic and unshifting about how one of the ladies (Anne or Hanora) had steadied Martin's hand during the actual signing for her recollection to be reliable, so long after the event. It seems to me that Nurse Hawadi had been reluctant initially to become involved because she knew that the 2004 Will had not been signed as her rudimentary knowledge of the requirement for wills probably required. It was only when she realised that the case had been lost – perhaps due to her absence - that she came forward in support of Nurse Haris and Hanora. I formed the clear view that Nurse Hawadi's certain recollection that only steadying assistance was given to produce the signature was simply not reliable."
  20. The position at this stage, then, is that the judge had rejected (at the first trial) Hanora's case that Martin had signed the will unaided; and had also rejected (at the second trial) Hanora's altered case that Martin had signed the will with Anne's help. Hanora still did not advance a positive case that Anne had signed the will at Martin's direction, although that possibility had been trailed in the judge's first judgment. Indeed Mr Buttimore's closing submissions, prepared on behalf of Hanora, asserted that it would contradict the overall probabilities that Martin played no active role in the execution of the will.
  21. It is also important to note, not only that it was not Hanora's case that Anne signed the will at Martin's direction but also that there was no evidence at all that Martin had said anything to Anne during the process of signing the will, or indeed that anyone had said anything to Martin during that process, despite the fact that he was fully alert and aware of what was going on.
  22. However, the judge found that Anne signed the will at Martin's direction; and that this meant that the will had been validly executed. He expressed his conclusion as follows:
  23. "84. It seems to me, however, that there is evidence on the basis of which I can and should properly conclude that Anne signed the 2004 Will at Martin's direction. I concluded in the first trial at paragraphs 42 and 43 that it would, in theory be open to the court to find that Anne signed the 2004 Will at Martin's direction, even if Hanora's evidence were to a contrary effect, but that there was at that time no evidence whatsoever that Anne was asked to sign the 2004 Will for Martin. Such evidence does now exist. At the first trial, Nurse Haris and Hanora relentlessly denied that Anne had had any part in signing the 2004 Will. They said, in effect, that Anne had played no part whatever in the signing process. It is now common ground amongst all 3 persons present who gave oral evidence that Anne did play a part. It is also common ground amongst them that, in the first instance, Martin tried to sign the 2004 Will with a pen in his hand, but failed to apply the pen to the paper in order to do so, because he was shaking so much. I accept that part of the evidence. In the few seconds that followed, the witnesses have told me that they recollect that Anne stepped in to steady Martin's hand allowing him to sign. I think they are all wrong about that, though an attempt to steady him may momentarily have been made. Instead, on all the evidence, I am entirely satisfied that Anne stepped in, took the pen, and signed the 2004 Will on Martin's behalf.
    85. Martin had already approved the contents of the Will and signified its satisfaction with its contents. I accept that evidence now, as I did in the Judgment. I am more than conscious of the fact that I am making that finding on the basis of the evidence of three witnesses, none of whom I have found reliable, and one of whom has much to gain from such a finding. Nonetheless, I am satisfied that it is what happened.
    86. As to the question of a direction by Martin to Anne to sign the 2004 Will on his behalf, much of what I have already said is relevant. First, when Martin failed to sign the 2004 Will himself, I am sure that he must have allowed Anne to take the pen from him and apply his name to the paper. There is no evidence that he said anything at that stage, but 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 Anne to sign on his behalf, can and should be taken as a direction by conduct to Anne to sign the Will in those terms on his behalf. He had tried and failed to do so himself. He wanted the 2004 Will signed. Moreover, if as I suspect may have happened, Martin made an attempt to sign with Anne's help but that attempt failed, it can be taken as further evidence of a wish to direct Anne to sign for him following his failed attempt or attempts. It will be recalled that, despite that fact that Martin was extremely physically unwell, he was, on the medical evidence, in possession of his mental faculties. There is no suggestion that he was not fully alert and aware of what was going on that afternoon. He wanted to make a will in favour of Anne, and it would (subject to the question of knowledge and approval to which I turn in a moment) be a denial of justice to him if that will were declared invalid without extremely good reasons. It seems to me that the provisions of section 9(a) expressly allow a will to be signed at the direction of the deceased and that this is precisely what happened on this occasion."
  24. Section 9 of the Wills Act 1837 (as amended) provides:
  25. "No will shall be valid unless –
    (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
    (b) it appears that the testator intended by his signature to give effect to the will; and
    (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    (d) each witness either –
    (i) attests and signs the will; or
    (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness),
    but no form of attestation shall be necessary."
  26. The Wills Act 1837 was originally enacted to give effect to recommendations of the fourth report of the Commissioners on the English Law of Real Property (1833) Parl. Papers (HC) vol xxiii. They had pointed out that before its enactment there were ten different laws for regulating the execution of wills depending largely on the distinctions drawn by the law between real and personal property, themselves originating from jurisdictional struggles between the ecclesiastical and lay courts: see Perrins v Holland [2010] EWCA Civ 840 [2011] 2 WLR 1086 § 13. One of the predecessors to the Wills Act 1837 was the Statute of Frauds 1677, which dealt with devises of land and other real property. Section 5 of that Act provided that a devise or bequest of land "shall be in writing and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the devisor by three or four credible witnesses…". As Mr Buttimore pointed out, the adjective "express" has been omitted from the corresponding text of the 1837 Act, and the required number of witnesses has been reduced to two.
  27. I begin with some general observations. First, as Mr Warwick appearing for Michael pointed out, all four of the conditions in section 9 must be satisfied before a will can be said to have been validly executed. Second, there is no discretion on the part of the court to override compliance with these conditions in order to give effect to the putative testator's intentions or wishes. Third, the conditions set out what is in effect the temporal sequence for their fulfilment. Fourth, since the validity of a will necessarily arises after the principal actor is dead, there are powerful policy reasons for insisting on their fulfilment. Fifth, the starting point for understanding the requirements of section 9 must be the words of the section itself.
  28. Section 9 (a) provides for two alternative methods by which a testator may affix a signature to a will: either by personally signing, or by directing someone else to do so. Each part of section 9 (a) must be assumed to contribute something to the requirement contained in that paragraph. Thus it is not enough for a third party to sign the will in the presence of the testator. He must have done so at the direction of the testator. This sheds some light on what amounts to a direction. The word "direction" is an ordinary English word. The relevant dictionary definition of "direction" in the Oxford English Dictionary (on line edition) is the action or function:
  29. "of instructing how to proceed or act aright; authoritative guidance, instruction."
  30. The Concise Oxford Dictionary (to which Mr Warwick referred us) defines the word as:
  31. "1. the act or process of directing; supervision. 2. (usu. in pl.) an order or instruction, esp each of a set guiding use of equipment etc."
  32. The combination of the dictionary definitions and the fact that the section requires more than mere signing in the testator's presence leads me to the provisional conclusion that something more than acquiescence or passivity on the part of the testator is required. What is required is something in the nature of an instruction.
  33. There is little authority on the signing of wills at the direction of the testator; and none, I think, that is binding on this court. Most of the cases concern the acknowledgement of the testator's signature, which is the condition laid down by section 9 (c). I agree with Mr Warwick's submission that the statutory requirement in section 9 (a) that there be a "direction" to sign connotes a more active role on the part of the testator than a mere "acknowledgment" under section 9 (c). Accordingly in my judgment cases on the validity of an acknowledgment cannot be directly applied to the question whether there was a sufficient direction for the purposes of section 9 (a).
  34. In Parker v Parker (1841) Milward 541 Mr Parker, the testator, attempted to sign the will twice, but could not. His solicitor, Mr MacNeale then "took the pen and asked him should I sign his name for him, to which after a short pause, he nodded assent and said "yes". I told him to hold the top of the pen, which he did, I writing his name at foot of the will." Dr Radcliff, sitting in the Court of Prerogative, said:
  35. "Seeing then that the Statutes prescribe no particular mode &c of signature, or of directions to another to sign, and being of opinion that the directions need not be in words or writing, but may be implied from the deceased's conduct, and the res gestae (otherwise one who could not speak or write, though ever so capable of communicating by signs must die intestate), I take the depositions of MacNeale … and deceased confessedly holding the top of the pen, usually done when a testator signs with a mark, makes proof of compliance with the 1st Vict."
  36. The clear thrust of this passage, to my mind, is that the testator must make some positive communication of his desire that someone else should sign the will on his behalf. The reference to conduct and the res gestae is in the context of one who is capable of communicating by signs. We know that there are people suffering from conditions that make it almost impossible for them to communicate normally and that those who understand them can go to extraordinary lengths to enable them to make their wishes and feelings known. In some cases, people communicate merely by the blink of an eye in response to a letter board as The Diving Bell and the Butterfly graphically demonstrated.
  37. In Jenkins v Gaisford (1863) 3 Sw & T 93 the testator, John Jenkins, had had an engraving of his signature made because he had difficulty in signing his name himself. When a codicil to his will came to be executed Mr Henry Atkins, who was Mr Jenkins' amanuensis, affixed or impressed Mr Jenkins' signature "in compliance with his express orders and directions" to the foot of the codicil. After the signature had been affixed to the codicil Mr Jenkins placed his hand on it and acknowledged the signature as his own. Sir Cresswell Cresswell held that the codicil had been validly executed. This is not surprising because Mr Jenkins had given an express order and direction to Mr Atkins with which the latter had complied.
  38. In Todd v Thompson (1863) 9 LT 177 there was a conflict of evidence about what had actually happened when the will in question was executed. It was common ground that the testator had signed the will in the absence of the witnesses. What was in issue was whether he had subsequently acknowledged the signature as his. Two of them said that the testator had actually and expressly acknowledged the signature as his. The third witness said that nothing was said, but that when the witnesses entered the room the will was on a table where the deceased was sitting and that the will was handed to the witnesses to sign. Keatinge J held that on the evidence the testator had expressly acknowledged his signature by words. But he went on to say that if he were wrong, then there was still a sufficient acknowledgment. He said:
  39. "It is not necessary that the acknowledgment should be in any particular form nor in any particular words, nor in words at all; it is enough if the conduct of the person on the occasion amounts to an acknowledgment."
  40. As a statement of principle I agree with this. But on the facts of that case there was positive conduct, namely the handing of the will for the witnesses to sign. It is true that the report of the case does not explicitly say who handed the will to the witnesses; but I do not read this case as suggesting that if the witnesses had signed the will without any action on the part of the testator he would still have been held to have acknowledged his signature. Moreover since the passage is obiter and is concerned with the validity of an acknowledgment rather than a direction I do not find it of much assistance to resolve the question before us.
  41. In In b. Marshall (1866) 13 LT 643 Mr Marshall asked his neighbour, Mr Errington, to sign his will on his behalf. Mr Errington did not sign it there and then, but sent for two witnesses. Once they had arrived Mr Errington signed the will, and they witnessed the signature, but Mr Marshall did not repeat his request in the presence of the witnesses, and had not acknowledged Mr Errington's signature as his. Sir JP Wilde (the future Lord Penzance), sitting in the Court of Probate, said:
  42. "On the construction of the section I am very clear that, by act or word, the testator must in some way indicate to the two witnesses present that the signature was put there at his request. Of course, if a previous positive direction had been made to the agent to sign the will, it might not be that the testator would repeat that in the presence of the witnesses; but he must do something to show that they understood at the time that the other party was signing for him."
  43. He thus refused to admit the will to probate without further evidence about what had happened at the date of execution. Halsbury's Laws of England (vol. 102 para 64) and Williams on Wills (para 11.21) treat this as a case about the adequacy of a direction to sign. However, it was rightly common ground before us that this was in reality a case about what amounts to the acknowledgment of a signature, where the testator himself had not signed the will, because on the recorded facts there had been an express direction to Mr Errington to sign the will on Mr Marshall's behalf. In such a case I do not find it surprising that the judge held that something more than passive acquiescence was required to amount to an acknowledgment on the particular facts of that case. There is a difference, as it seems to me, between witnesses attesting a will which bears the testator's own signature and witnesses who see someone they know not to be the testator physically signing the document in their presence. There must be something to bring home to the attesting witnesses that the testator is adopting the third party's signature as his own.
  44. In Inglesant v Inglesant (1874) LR 3 P & D 172 Mrs Inglesant signed her will in the presence of only one witness. When the second witness entered the room Mrs Inglesant's friend, Mrs Lee, said to the second witness "Sign your name under Mrs Inglesant's signature", which he did. Sir James Hannen held that this amounted to an acknowledgment of her signature by Mrs Inglesant because Mrs Lee's words were said in her hearing and could be taken to be the words of Mrs Inglesant herself. Once the judge had reached the conclusion that Mrs Lee's words were to be treated as the words of Mrs Inglesant herself, there was an express acknowledgment of the signature. Again this was a case concerned with the acknowledgement of the testatrix's own signature rather than a direction to a third party to sign. The decision in this case may be contrasted with the same judge's rather stricter view in Morritt v Douglas (1872) LR 3 P & D 1 which suggests that even for an acknowledgment something more than passivity is required.
  45. The only modern case on the topic is Fulton v Kee [1961] NI 1, a decision of the Court of Appeal in Northern Ireland. Mr Fulton, the testator, suffered from severe disseminated sclerosis which made movement very difficult, if not impossible. He was attended in hospital by his solicitor, Mr McCanny, and a solicitor's clerk, Mr Fyffe. Having taken instructions Mr McCanny drew up a will. Mr McCanny's evidence was that he asked Mr Fulton whether that was the way he wanted, and he replied "Yes that's the way, that's right." Mr McCanny then took the will and the pen and he "backed the pen against his fingers and I made the mark". The pen was in contact with Mr Fulton's hand all the time. The trial judge directed the jury that if they accepted this evidence they were entitled to find that the will had been duly executed. They found that it had been. The Court of Appeal set aside the verdict and ordered a new trial. In resisting the appeal it is pertinent to note that Mr Jones QC for the respondent argued that even if the evidence had not demonstrated a case of actual signature it was capable of being interpreted to show a signature by direction. Lord MacDermott declined to deal with that submission on the ground that it "was not the case made at trial". Black LJ said:
  46. "In dealing with this issue of execution I have treated the case as one in which the question was whether the will was signed by the testator and not as one in which it was suggested that the alternative method sanctioned by section 9 of the Wills Act was adopted, namely, by the will being signed by some other person in the testator's presence and by his direction. I have done so because at the trial the case presented throughout on behalf of the plaintiff was that the signature (or rather the mark) was an execution of the will by the testator himself."
  47. On the substantive question what amounts to a direction, the observations of the court were obiter, since they declined to rule on the question whether the evidence amounted to a direction to sign. However, their observations are none the less of persuasive value. In fact Lord MacDermott was the only member of the court to consider the question of a signature by direction of the testator. He began by setting out the principles. He said:
  48. "This section provides two ways in which a testator may execute his will and two ways in which either method of execution may be witnessed. The testator may execute by signing the will himself or he may have the signing done by his direction and in his presence by someone else. Whichever mode is adopted the testator must, of course, intend to have the document executed as his will. But the signing enjoined by the section need not be a written signature; a mark made with the necessary intent will suffice: see Baker v. Dening ((1838) 8 Ad & E 94) and In the Goods of Clarke ((1858) 1 Sw & Tr 22). And the testator's direction to another to sign on his behalf need not be expressed formally or even voiced. It is enough if the testator manifests his direction by his conduct: see Parker v Parker (1841) Milward 541."
  49. It will be noted that Lord MacDermott cited only Parker v Parker in relation to what was necessary to amount to a direction. His summary was that the testator must "manifest" his direction by conduct. He then held that in the case of a testator who is said to have signed a will personally, passive physical contact with the wielder of the pen is not enough. He said that the section requires:
  50. "… something of the testator which is positive and discernible and not just a matter of abstention. The formalities of the statute are a guard against fraud, and to hold that its positive provision that a will must be "signed . . . by the testator" can be complied with by a purely negative course of conduct would be, in my opinion, to run contrary to the spirit and purpose of the legislation as well as to the natural meaning of its language."
  51. He then turned to the question of a signature by direction of the testator, which as I have said was not the issue on appeal. He said:
  52. "What I have been saying relates to what I have called a personal signing by the testator. As I have observed earlier, the direction necessary to lead to the execution of a will by an agent can be a matter of conduct, and it may be that such a direction can, on occasion, be implied from what is a negative rather than a positive attitude on the part of the testator. One must, of course, have regard to all the circumstances, but speaking generally, I think conduct on the part of a testator which would not justify a finding that he himself had executed his will personally might well be capable of implying a direction to someone else to sign on his behalf. Take for example this instance – and here I deliberately keep away from the facts of the present case: a testator who is completely powerless in his limbs says to his solicitor, who has drawn his will according to his instructions. "Now put my hand on yours", and the solicitor then writes the testator's name with the testator's limp fingers upon his. That, for the reasons I have stated, would not, in my opinion, amount to a personal execution by the testator, but in the absence of something to indicate the contrary I do not see why it should not be regarded as a signing by direction."
  53. The earlier observation to which Lord MacDermott referred was to the passage I have quoted referring to Parker v Parker. The only example that Lord MacDermott gave to illustrate what he meant was one where the testator gave explicit instructions to the holder of the pen, and the only question would have been what they meant. The illustration does not depart from the requirement of some positive communication by the testator in order to amount to a direction which in my judgment is implicit in Parker v Parker and explicit in Re Marshall. I accept entirely that the communication may be non-verbal, as in Parker v Parker where in addition to saying "yes" the testator nodded assent. But in my judgment there must be more than passive acquiescence in someone else's actions. I do not therefore consider that Lord MacDermott's tentative and obiter statement that "it may be that such a direction can, on occasion, be implied from what is a negative rather than a positive attitude on the part of the testator" is supported by authority, or is correct in principle. Moreover, there is, to put it no higher some tension between that observation and his earlier summary of principle in which he said that the testator must "manifest" his direction by conduct.
  54. Signature at the direction of the testator is an alternative to signature by the testator personally. If, as Lord MacDermott said, something active on the part of the testator is needed to satisfy the latter mode of signature, it seems to me that something active on the part of the testator must also be required to satisfy the former. Just as in the case of a personal signature satisfaction of the requirement by negative conduct would "run contrary to the spirit and purpose of the legislation as well as to the natural meaning of its language", so in my judgment in the case of a signature by direction to hold that the requirement that a direction can be given by negative conduct would do the same. In my judgment 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. It is of course good practice that the attestation clause should show that the will was signed by another person signing his own or the testator's name, by the direction and in the presence of the testator, and (as also in the case of a mark) that it had been read over to the testator and that he appeared thoroughly to understand it: Tristram and Coote Probate Practice (30th ed) para 3.79.
  55. The judge's crucial finding of fact was that after Martin tried and failed to sign the will Anne "stepped in, took the pen, and signed the … will on Martin's behalf." There is no finding here (nor would there have been evidence to support such a finding) that Martin asked Anne to step in and sign the will; or that Anne asked Martin whether she should sign the will before she "stepped in". Mr Warwick submitted with force that the judge's finding of primary fact was that "Anne stepped in and signed the will" and that the judge's further statement that she signed "on Martin's behalf" begged the very question that the judge had to decide. As the judge recorded in his first judgment "there is no evidence whatsoever that Anne was asked to sign the Will for him". That evidential position did not in my judgment change at the second trial. The only evidence that the judge accepted at the second trial which was not given at the first was Hanora's evidence that "between the two of them they signed the will". That is not evidence of a request from Martin to Anne that she should sign the will on his behalf. In my judgment the mere facts that Martin wanted to make a will and had tried and failed to sign it personally are insufficient to amount to a direction to Anne to sign the will on his behalf. Moreover, it must be borne in mind that Martin was fully alert and aware of what was going on; and therefore well able to communicate his wishes. Mr Buttimore submitted that the lack of protest or objection by Martin in circumstances in which he might have been expected to object could amount to an implicit direction to Anne to sign the will. I do not agree. Nor do I consider that it is enough to find, as the judge did, "a wish to direct Anne to sign". The question is not whether Martin wished to direct Anne to sign but whether he in fact did so. In my judgment some positive communication is required in order to amount to a valid direction. Indeed, the fact that Martin could have asked Anne to sign the will but did not; or could have assented by word or nod to a suggestion that Anne should sign the will but did not, points against rather than towards the conclusion that Anne signed at Martin's direction. In addition, it cannot be assumed that Martin would have directed Anne to sign the will, bearing in mind that she was the sole beneficiary under it. The highest that it can be put, is, as the judge said, that Martin wordlessly "allowed Anne to take the pen from him and apply his name to the paper". But even that way of putting it is a further remove from the finding of primary fact that "Anne stepped in [and] took the pen". In my judgment the evidence fell short of establishing any positive communication (whether verbal or non-verbal) by Martin expressing a direction or instruction to Anne to sign the will.
  56. The judge considered the evidence with conspicuous care. He was conscious both that he had rejected Hanora's positive case and that he was basing himself on the evidence of witnesses significant parts of whose evidence he had rejected. However, giving full weight to his findings of fact, in my judgment the evidence did not establish that the will was properly executed. There was insufficient evidence to support the judge's ultimate conclusion that Anne signed the will at Martin's direction. I would allow the appeal on the first ground.
  57. The second ground of appeal does not therefore arise. However, I echo the judge's view that it is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity; and that Parliament should consider changing the law to ensure that this cannot happen in the future.
  58. Martin made an earlier will in 2002 (which Hanora had previously suppressed). It is common ground that if the disputed will was not validly executed, the court should pronounce in favour of that will. I would so pronounce, and admit it to probate in solemn form.
  59. Lord Justice Hughes:

  60. I agree.
  61. Lord Justice Maurice Kay:

  62. I also agree.


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