Validity of Wills: A Recent Probate Case

Finders International are not just Heir Hunters but also work for many solicitors tracing beneficiaries who are named in a will but whose whereabouts are unknown. Finders would always recommend having a will that is both up to date and readily available, unfortunately unless the will is properly written and executed there can still be problems between beneficiaries and heirs.

A recent case shows that even though the intention of a Testator is clear a will can be disputed if the will is not signed by the Testator and properly witnessed. If a beneficiary is involved in making or signing a will suspicions may be raised and Finders would recommend that beneficiaries are not present at any stage.

This was made clear in the recent case of Barrett v Bem.

Just hours before he died in hospital the Testator made a will which was witnessed by two nurses, but due to the state of his health his hand was shaking so much he could not sign his name, so his sister who was the sole beneficiary signed on his behalf.

When the case first went to Court (Lavin (Deceased) in 2009), The Claimant successfully argued that the will was invalid on the basis that it had not been signed by the Testator as the law on this point requires that, to be valid, a will must be, “in writing, and signed by the Testator, or by some other person in his presence and by his direction”.

After the sister died her daughter returned to Court for a retrial, as the evidence had changed. The witnesses attested that the sole beneficiary had in fact come to the Testator’s assistance when he was attempting to sign the will and “between the two of them, they signed the will”.

This time the daughter was successful, although The Judge did comment that it is not desirable that beneficiaries should be permitted to execute a will which is to their benefit and it would be helpful for the Courts to legislate in this area.

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1. The combination of the Testator’s failed attempt to sign, together with his allowing the sole beneficiary to sign on his behalf was good evidence of his intention and it was clear that the Testator had wanted to make the will and had clearly stated and understood the dispositions he wished to make.
2. The signature would be valid provided the testator made a positive and discernible contribution to the signing process.
3. Whilst the law renders any gift to a beneficiary who is also an attesting witnesses null and void, there was no such law for a beneficiary signing at the direction of the Testator and was clear; a Testator could either sign the will himself or direct another to sign it on his behalf provided there were two witnesses.

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Finders International heir hunters have been awarded the ISO 9001:2008 Total Quality Management certification and are the first probate genealogy firm to achieve the international version of this Standard as devised by the IAB (International Accreditation Board). Finders International have also been awarded ISO/IEC 27001:2005 Data & Information Security Certification. Finders International also provide Aviva missing beneficiary insurance, which protects Trustees and Administrators against the unlikely but possible event of an unknown beneficiary emerging after an Estate has been distributed. Finders International can also obtain Aviva insurance against a will being found which disinherits heirs who have already been paid, thus safeguarding heir from ever having to repay their inheritance once received.

As agents for AVIVA, Finders International probate genealogists and researchers are regulated by the Financial Conduct Authority.
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