A case recently heard by the Court of Appeal illustrates that long-running litigation can result when a will is home made. The decision also contains useful guidance on what is required for a will to be valid when it is not signed by the testator personally but by someone else on his or her behalf.
Martin Lavin made his will shortly before his death in January 2004, without the involvement of a solicitor. The first challenge regarding the will’s validity was heard in 2009. This resulted in an appeal to the High Court, which took place in 2011. An appeal against the High Court’s decision has now been heard by the Court of Appeal.
The will was drawn up in manuscript by one of Mr Lavin’s nieces during a hospital visit, after he stated that he wished to make a will. He died shortly afterwards.
Much of the evidence surrounding the signing of the will seems to have been contradictory, but it was decided that the most likely scenario was that Mr Lavin was unable to sign it as his hands were very shaky and that his sister, Anne, therefore signed the will instead.
In 2009, the will was successfully challenged by Mr Lavin’s nephew on the basis that Mr Lavin had not signed it. However, the will was later pronounced valid when the High Court found that it had been signed by Anne at Mr Lavin’s direction.
In the Court of Appeal, Lord Justice Lewison said that for a will signed by a third party at the testator’s direction to be valid, there must be ‘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’.
In Mr Lavin’s case, the judge found that no such positive communication had taken place, the likelihood being that Anne had ‘stepped in’ to sign the will, without her brother having requested it. The will was therefore declared invalid some eight years, and three court hearings, after the testator’s death.