The legal formalities of signing a will
A common theme running through our articles is the need to follow the formalities set out by law for the due creation and execution of a will. A good example of this is that someone who is to benefit from a will, is unable to then act as a witness.
What happens though if the maker of the will, whilst knowing and approving its contents and intending to make it, is nonetheless unable to sign it or make a mark to authorise it? In those circumstances the will can be signed by some other person in the presence of the maker of the will and by the latter’s “direction.”
The case of Barrett v. Bem (2012), where Mr Lavin purportedly made a deathbed will, shows that the will maker’s direction regarding the authorisation of their will must be a positive and discernible indication, be it verbal or non-verbal such as a nod or a blink of the eye.
When taken to the Court of Appeal, this case also highlighted an undesirable loophole that although a person benefiting from the will may not witness its creation, under the letter of the law they may still be permitted to sign the will under the direction of the will maker. To protect against potential fraud the court suggested that “Parliament should consider changing the law to ensure this cannot happen in the future.”
The body who advises the government on legislative changes, The Law Commission, in its consultation “Making a Will” of July 2017 has proposed the closing of this loophole.
As always, the reported legal cases are very expensive examples of what can happen if the proper formalities are not followed.