Barrett v Bem and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Hughes,Lord Justice Maurice Kay |
| Judgment Date | 31 January 2012 |
| Neutral Citation | [2012] EWCA Civ 52 |
| Docket Number | Case No: A3/2011/1533 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 2012 |
[2012] EWCA Civ 52
Lord Justice Maurice Kay
(President of the Court of Appeal, Civil Division)
Lord Justice Hughes
and
Lord Justice Lewison
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
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
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:
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.
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):
"… 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."
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):
"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."
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:
"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."
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.
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.
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.
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.
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):
"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."
Commenting on Staff Nurse Haris' evidence the judge said (§ 56):
"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."
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.
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