Barrett v Bem & Ors [2011] EWHC 1247 (Ch)

[2011] EWHC 1247 (Ch)Case No HC07C01351
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/05/2011
Before
MR JUSTICE VOS
Between
Michael BarrettClaimant(1) Hanora BemDefendants(2) Matthew BemDefendant(3) Alexander BemDefendant(4) Sophie BemDefendant(5) Eta MeehanDefendant(6) Beatrice O’SheaDefendant(7) Eamonn BarrettDefendant
Mr Mark Warwick (instructed by Hatch Brenner) for ClaimantMr Gabriel Buttimore (instructed by Teacher Stern LLP) for first DefendantThe 2 nd to 7 th Defendants did not appear and were not represented (save that the 5 th and 7 th Defendants gave evidence for Claimant)Hearing Hearing dates: 5 th, 6 th, and 9 th May 2011
Judgment

Introduction

[1]This is the retrial of this action ordered by the Court of Appeal on 4th October 2010. I previously gave judgment (the “Judgment”) for the Claimant, Mr Michael Barrett (“Michael”) on 9th October 2009, pronouncing against the validity of a will (the “2004 Will”) allegedly made by Mr Martin Lavin (the “Deceased” or “Martin”) in favour of his elder sister Mrs Anne Liston (“Anne”) on the day he died, namely the 11th January 2004. In this judgment, I shall seek to use broadly the same abbreviations and terminology as I used in the Judgment.[2]The Court of Appeal (Jacob, Wall and Rimer LJJ) ordered a retrial before me, because new evidence came to light between my Judgment and the appeal hearing, in the form of a statement dated 26th October 2009 from Staff Nurse Pearl Hawadi (“Nurse Hawadi”). In the broadest of outline, Nurse Hawadi said in that statement that Martin had indeed signed the 2004 Will, but when he tried to do so, his hand had been shaking so much that it had been steadied by either Anne or Anne’s daughter, the first Defendant, Ms Hanora Bem (“Hanora”). Nurse Hawadi’s statement was supported by two further statements that were put before the Court of Appeal, contradicting what they had previously said about the signing of the 2004 Will, from the other witness, Staff Nurse Norhafiza Haris (“Nurse Haris”), and from Hanora.[3]Since the Court of Appeal ruled, further expert evidence has been produced from both sides as to whether the signature on the 2004 Will could have been what has been termed a “guided hand signature”. The conclusion of both experts, Mr Robert Radley (“Mr Radley”) and Dr Audrey Giles (“Dr Giles”) was that there “is conclusive evidence to support the view that the questioned signature on the[2004] Will … was not produced in the manner described in the recent witness statements (namely with [Anne] merely assisting [Martin] so as to steady his shaking hand)”.[4]As if these developments were not sufficient, since the Court of Appeal ruled, a further will made by Martin has come to light. It is not now disputed that that will (the “2002 Will”) was made by Martin on 2nd October 2002, having been drafted by solicitors acting on the instructions of his bank, HSBC. The 2002 Will appointed HSBC Trust Company (UK) Limited as executor and trustee, left Martin’s property at 574 Greenford Road , Greenford, Middlesex UB6 8QU (“574 Greenford Road”) to Mr James Lavin (who is in fact Thomas James Lavin and known as “Jimmy”), the son of one of Martin’s brothers, Mr Owen Lavin (“Owen”). The balance of the estate was to be divided between:- i) Mr Eamonn Barrett (“Eamonn”), the son of Mrs Kathleen Barrett (“Kathleen”), one of Martin’s sisters; ii) Ms Imelda Lavin (“Imelda”), the daughter of Owen; and iii) The daughter of Ms Bernadette Lavin deceased (“Bernadette”), who was herself another daughter of Owen.[5]The central issue in this retrial remains whether the 2004 Will complies with the requirements of section 9(a), of the Wills Act 1837 (“section 9(a)”) so that it is “in writing, and signed by the testator, or by some other person in his presence and by his direction”. The focus has, however, moved from the first limb of section 9(a) alone to both the limbs of section 9(a). And for reasons that will become apparent, despite the fact that Mr Mark Warwick, counsel for Hanora, amended his Particulars of Claim on 29th March 2011 so as to delete paragraph 5 which had previously pleaded that “[Martin] did not know and approve the contents of the [2004 Will]”, knowledge and approval remains a serious and important issue. Whatever the state of the pleadings, Hanora must prove knowledge and approval if she is to succeed in establishing the validity of the 2004 Will.[6]If the 2004 Will did satisfy section 9(a) and if Martin did know and approve of the contents of the 2004 Will, then Michael’s claim will fail and the estate will pass to the heirs of Anne. If not, it is now common ground that the court should pronounce in favour of the undisputed 2002 Will.[7]At this retrial, some time has been spent exploring allegations of lack of integrity surrounding Martin’s estate. I shall need to make some findings in relation to these allegations, but suffice it to say at this stage that they do not much redound to the credit of either of the main protagonists.[8]The position is now rather more complex than it was at the first trial, since there has been evidence from 3 witnesses that Martin was assisted in the signing of the 2004 Will. Thus, the question is not simply, as it was before: did Martin sign the 2004 Will or was his name written by someone else? I shall need to consider whether Martin was assisted in signing it, or whether Anne or someone else signed it alone, and if so, whether Martin directed that Anne should sign it on his behalf and whether, in that event, it is necessary to show that Martin then acknowledged that signature.

Factual background

[9]It is common ground that, with the exception of my findings about the central issue that I have already identified, the factual findings that I made in the Judgment stand. They have not been challenged. In those circumstances, I do not intend to repeat them in this judgment. The findings made in my previous Judgment, save as to how the 2004 Will was signed, can and should be read in to this judgment. For the sake of context, however, I have included in the following chronological account some events already mentioned in the Judgment. With that introduction, I will turn to deal with the events that are relevant to the determinations that I will have to make, acknowledging that some of the facts are simply relied upon in seeking to discredit Michael on the one side and Hanora on the other.[10]On 12th June 1934, Martin was born in Ballymote, County Sligo, in the Republic of Ireland, and in about 1951, Martin came to live in England. He worked for Wimpey during much of his life often travelling abroad, and in November 1992 Martin retired. Martin never married.[11]On 7th March 2002, Mr Thomas Liston (“Thomas”), Anne’s only son and Hanora’s only brother died of a brain tumour at the age of 46. Hanora had written out Thomas’s will shortly before he died, leaving Anne his house worth some £200,000, and what was in his bank and building society accounts to Hanora. It is noteworthy that Martin witnessed this manuscript will prepared by Hanora for Thomas the day before he died, and that the will did not include any revocation clause.[12]On 2nd October 2002, Martin made his 2002 Will, witnessed by two HSBC staff. The 2002 Will was stored for safekeeping with HSBC.[13]On 26th September 2003, Anne made her last will appointing Hanora and her son Matthew Bem (“Matthew”) as executors and trustees, and leaving half her residuary estate to Hanora and half to Hanora’s three children (including Matthew).[14]On 11th January 2004, Martin allegedly made the 2004 Will, some 3 hours prior to his death at the age of 69. The 2004 Will said:- “I, Martin Lavin, of 574 Greenford Road, Greenford, Middx, declare this to be my last will + testament, and I cancel all others. I would like to leave everything I have to my sister, Anne Liston, of 95 Mansell Road, Greenford. I want Anne Liston to deal with probate. I wish to be buried in Ireland”.[15]On 14th January 2004, Hanora informed HSBC of Martin’s death. It appears that at or about this time, someone (most likely to have been Anne or Hanora) also informed HSBC that Martin had made a new 2004 Will prompting HSBC’s probate department to write to the branch on 19th January 2004 saying that the 2002 Will they held had been revoked by a later will, that matters were in Anne’s hands, and that the 2002 Will “should now be treated in the same way as any other safe custody item and be released to the executors in due course”.[16]On 13th April 2004, Hanora wrote to a solicitor in Ballymote called Mr Johnston, enclosing completed indemnity and withdrawal forms concerning an Irish bank account that Martin had held, and saying that she was writing on Anne’s instructions “as unfortunately her health, both physically and emotionally is not good at the moment”. Hanora told me that Anne was not particularly ill at that time, having had a bout of ‘flu, but otherwise only suffering from some constipation. She showed me a photograph of her mother on holiday in Tunisia at the end of April or the beginning of May 2004 looking fit and well. In June 2004, however, Anne was diagnosed with bowel cancer.[17]On 15th June 2004, probate of Martin’s 2004 Will was granted to Anne, certifying that the estate did not exceed £240,000, and that its net value did not exceed £230,000. It is now known that Martin had more than £100,000 in cash deposits at HSBC, Halifax and AIB, not counting whatever was invested in Ireland, and that the probate value of 574 Greenford Road was at least £200,000, so that this certification was false.[18]On 25th June 2004, the 2002 Will and a sealed envelope were withdrawn from HSBC’s safe keeping. In addition, on the 1st July 2004, £55,326.07 was withdrawn from Martin’s accounts at HSBC and paid into Anne’s account with Lloyds TSB.[19]On 12th July 2004, Hanora filled out and Anne signed a request for withdrawal of the monies in Martin’s Halifax account. On 2nd August 2004, £38,945.94 was paid from that Halifax account into Anne’s account at Lloyds TSB.[20]On 29th July 2004, AIB’s records show that they were informed of Martin’s death by his niece. Hanora accepted that she was that person.[21]On 25th October 2004, when Anne was very ill in hospital, some £9,000 was withdrawn from Martin’s account at AIB and paid to Anne. Hanora accepted that her mother could not have arranged that payment and that she must have done so, but she said that she did not recall what became of the money.[22]On 4th November 2004, Anne died at the age of 79, and on 25th January 2005, probate of Anne’s will was issued to Hanora as executor of her will. Her estate was certified to amount to £415,200.[23]On 16th November 2005, Michael’s solicitors wrote to Hanora for the first time enquiring about the circumstances of Martin’s 2004 Will.[24]In 2006, a significant legal battle took place between Michael and Hanora in the Brentford County Court, when Hanora sought possession of 574 Greenford Road from Michael. On 21st April 2006, District Judge Plaskow ordered that Michael deliver up possession of 574 Greenford Road to Hanora, and ordered Michael to pay Hanora the total sum of £15,828.24 including costs. Hanora said that Anne had agreed to allow Michael’s employees to occupy the property pending completion of a sale of the property to Michael for £200,000. Michael claimed that Anne had allowed him to live there for as long as he wished. In evidence to me, Michael admitted that he had personally made an application to the Brentford Court in July 2006 to set aside the judgment on the false basis that he had a ‘tenancy in perpetuity’, and that he had allowed his solicitors to put forward an entirely false story in a letter to the court dated 20th June 2006, in an effort to try to stop the sale of 574 Greenford Road pending a challenge to the 2004 Will.[25]On 16th February 2007, Hanora sold 574 Greenford Road to a third party for £230,000.[26]Ultimately, on 24th May 2007, Kathleen issued the Claim Form in these proceedings seeking revocation of the grant of probate to Anne, an order that the court should pronounce against the validity of the 2004 Will, and that letters of administration of Martin’s estate should be granted to Kathleen.[27]On 1st October 2008, Master Bragge ordered that Eta Meehan, the 5th Defendant, should represent all those entitled on intestacy.[28]On 23rd February 2009, Mr Radley’s first report concluded that the likelihood of Martin having written the signature on the 2004 will “may be realistically disregarded”.[29]On 6th April 2009, a joint report was prepared by Mr Radley and Mr Ansell (then Hanora’s expert), in which Mr Ansell expressed his conclusion that it was “very unlikely that the [2004] Will was signed by [Martin]”.[30]On 10th April 2009, Hanora served a witness statement in reply to the handwriting evidence saying that Anne had signed certain papers on Martin’s behalf, and doubting the genuineness of Martin’s comparison signatures that the experts had used.[31]On 9th October 2009, after the first trial, I pronounced against the validity of the 2004 will on the grounds that Martin had not signed it, revoked the probate granted to Anne, and granted letters of administration of Martin’s estate to Michael. In addition, I ordered Hanora to disclose details and documents relating to the value and distribution of the estate, and to pay half Michael’s costs of the action, and that Michael should recover his remaining costs from the estate, making clear that Hanora should pay her own costs.[32]On 26th October 2009, Nurse Hawadi made a statement saying that either Anne or Hanora held Martin’s hand to steady it whilst he signed the 2004 will. She said also that she was “100% certain that the pen was in his hand when the [2004 Will] was signed”.[33]On 28th October 2009, Nurse Haris signed a second statement saying that she remembered Anne helping Martin “by holding his hand in hers [her hand] to stop the shaking”. She made it clear that Anne held Martin’s hand not the pen.[34]On 30th October 2009, Hanora made a new statement saying that she recalled her mother, Anne, holding “his hand or his wrist just to stop the shaking and to enable him to sign” the 2004 Will. When questioned about this in detail in evidence, however, Hanora said that Martin tried to sign the 2004 Will himself, 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 said she did not know to what to extent Martin was able to help with the signature as compared to Anne.[35]On 4th March 2010, the Court of Appeal admitted the new evidence of Nurse Hawadi, and set aside the orders I had made, except those in relation to the costs, and ordered that the case be remitted to me for a retrial. They made no order as to the costs of the appeal.[36]On 15th September 2010, Mr Radley’s third supplemental report opined that the “the possibility that this is a guided hand signature may be realistically disregarded”. I shall return to the detail of that opinion in due course.[37]On 22nd October 2010, Dr Giles made her report for Hanora reaching broadly the same conclusion as Mr Radley.[38]On 25th November 2010, Mr Radley and Dr Giles made a joint report concluding that:
“We are agreed that: (1) There is conclusive evidence to support the view that the questioned signature on the Will dated 11th January 2004 was not produced in the manner described in the recent witness statements (namely with Mrs Liston merely assisting Mr Lavin so as to steady his shaking hand). We are agreed that: (2) There is no evidence that Mr Lavin made any contribution to the signing process and the fluency at the end of the signature and other features indicates that the pen was being held in a normal manner by the person writing the signature.”

We are agreed that:

[39]On 28th January 2011, Roth J stayed enforcement of the balance of the costs order in Michael’s favour from the first trial, and the monetary order of the Brentford County Court against Michael, both pending the retrial, and granted an interim charging order against Hanora’s property at 95 Mansell Road, Greenford, Middlesex UB6 9EJ in respect of the costs order from the first trial, and ordered Michael to pay Hanora £4,500 in respect of the applications.[40]An extensive correspondence took place between solicitors between August and December 2010. Michael’s solicitors asked for Hanora’s authority to contact HSBC for information about Martin’s estate, and Hanora’s solicitors prevaricated, saying that Hanora herself was pursuing the matter with HSBC. In her evidence to me she admitted that she was not in fact doing so, since she saw no need to do so pending the retrial. Eventually, Michael applied to the court and on 13th December 2010 Deputy Master Nurse ordered disclosure against HSBC, which was swiftly provided. It was in that way that Michael became aware of the 2002 Will.[41]On 28th March 2011, I gave permission to Michael to amend his Particulars of Claim to seek to propound the 2002 Will, and joined Eamonn as the 7th Defendant to represent the beneficiaries of the 2002 Will.

The pleaded case

[42]Michael’s amended Particulars of Claim plead at paragraph 4 that the signature on the 2004 Will is not the signature of Martin, and that the 2004 Will “is therefore not the last Will and testament of [Martin]”.[43]Hanora’s amended Defence dated 13th April 2011 pleads that Martin “did indeed sign the 2004 Will, that it was duly executed and witnessed and that it is the last will and testament of [Martin]”.[44]Despite the filing of the new evidence from the attesting witnesses and from Hanora, and from the handwriting experts, there is no pleading that Martin signed the Will with Anne’s assistance, or that Anne signed the 2004 Will on Martin’s behalf or at his direction. Mr Gabriel Buttimore, counsel for Hanora, nonetheless submits (despite Mr Warwick’s objection) that such submissions are open to Hanora since, whether the signature was made with Anne’s assistance, on his behalf, or at his direction, it remains his signature for the purposes of the pleaded defence and the 1837 Act. I shall return to deal with these contentions in due course. The new evidence at the retrial

Michael’s witnesses

[45]Michael called a number of people who gave evidence, amongst other matters, about the relationship between Martin and Hanora, none of which seemed to me to take the matter much further than the evidence at the original trial.[46]Imelda gave evidence for the first time at the retrial. She said that, from when she was 16 years old, Hanora said how much she disliked Martin when she visited the Arsenal Tavern, which was where Imelda worked in her parents’ pub. Hanora, she said, knew that Martin “had real issues” with aspects of her conduct and “this annoyed her”. I gained the impression that Imelda was really talking about odd occasions many years ago before Hanora married.[47]Jimmy gave evidence confirming what his sister, Imelda, had said about Martin’s attitude to Hanora, but he was not cross-examined on the point. Mrs Mary Porter and Eamonn gave evidence about the likelihood of Martin wanting to benefit those named in the 2002 Will. I gained some insight from Eamonn’s statement to the effect that Martin’s nickname was “diamonds”, that he was known for his gold watches, jewellery and diamonds collected whilst he was working abroad, and that a large “L” within a diamond was etched in the brickwork in Eamonn’s pub, Lavins Irish Bar, as a tribute to Martin.[48]Michael gave evidence briefly and was cross examined on his dispute with Hanora over the occupation of 574 Greenford Road after Martin’s death. I have already stated my findings on these points in the course of the above chronology.[49]Mr Mayur Shah, the HSBC bank manager, also gave evidence as to the bank’s practice in relation to the preparation of wills and its dealings with the next of kin on the notification of death. He was a careful and reliable witness. He was called to support the inference that Mr Warwick sought to draw that the 2002 Will must have been given up to Hanora, thus leading to the conclusion that she suppressed its contents at the first trial. Mr Shah was not able to be conclusive on the point, but as appears hereafter, I have concluded that Hanora must have known about the 2002 Will. Hanora’s witnesses[50]Plainly, Hanora’s witnesses were of central importance to the issues that I have already identified.[51]Hanora herself gave evidence first. She was plainly distressed by the experience. I recall her manner as being rather more confident and outgoing on the previous occasion I saw her. Moreover, though I am sure she was less than frank about some of the issues on which she was cross-examined, she was, I think, making a greater effort to say what she recalled about the signing of the 2004 Will. In the Judgment, I formed the view that Hanora had not played the leading role in the signing process of the 2004 Will, and that Hanora was keen to protect her mother’s reputation. I expressed the view that since Hanora would not have had cause seriously to consider whether Martin actually signed the 2004 Will himself until 2006 or 2007, her recollection may have been mistaken and influenced by her desire to defend her mother’s actions.[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.[53]To summarise my findings on the matters that Hanora was taxed with as to her conduct, I think that she knew about the 2002 Will and retrieved it from HSBC on 25th June 2004, and has been concealing it ever since. This is a serious matter, because I directed her to file an affidavit of scripts, which she did not honestly do. But from Hanora’s point of view, I think she must have persuaded herself that the 2002 Will did not matter if she was right, as she persuaded herself she was, about the validity of the 2004 Will. It is not as simple as Mr Warwick would have it – that just because Hanora has told untruths about one matter, she is necessarily lying about another. Life is just more complicated than that.[54]I also think it likely that Hanora knew about the level of Martin’s assets and has concealed papers about the estate from Michael and not disclosed them to the Court. Again this is reprehensible. In this unusual case, however, I have to look at the evidence on each point separately, reminding myself that, just because a witness lies on one point, it does not mean that they are lying on all points.[55]Nurse Haris gave evidence next. She was as certain on this occasion as to what had happened in relation to the signing of the 2004 Will as she had been in relation to her very different account on the last occasion. I said in my previous judgment that:- i) Nurse Haris was a clear and impressive witness, doing her very best to assist the Court. ii) Nonetheless there were clear indications to me that she may have been in error as to her recollection. iii) As the sympathy card she sent to Anne demonstrated, they had become friends (or at least good acquaintances) over the time of Martin’s stay at Hammersmith Hospital. iv) Nurse Haris struck me as the kind of person who would not wish to be thought to have been less than meticulous and careful, and that I was left with the feeling that she was reconstructing rather than remembering when she gave evidence as to actually seeing the Will signed by Martin. v) It seemed to me entirely possible (and I think probable) that in the turmoil of the unfamiliar process of preparing and witnessing a will, Nurse Haris might not have seen who wrote Martin’s name on the Will.[56]Much of this remains appropriate to her evidence at the retrial, but it is hard to be quite so charitable to her on this occasion. 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.[57]She was given the opportunity in her evidence both in chief and in cross-examination to express any uncertainty she felt as to what had happened now 7 years ago. She rejected the opportunities outright, saying that she now remembered that Martin’s hand was shaking and Anne held his hand to stop it shaking; that it was not possible that Anne was also holding the pen, because that was not what Anne wanted to do.[58]For the reasons I gave when she first gave evidence, I cannot accept Nurse Haris as a reliable witness. I think she is, at least in part, reconstructing what she now claims to remember. I am clear that the reason she is doing so is in order to assist Hanora’s case. I have not, however, had any cause to reconsider the conclusions that I reached at the first trial about Nurse Haris’s efforts to make sure that Martin knew and understood what he was doing (see paragraph 37 in particular). Mr Warwick had ample opportunity to challenge all the witnesses on this and related points, since I drew attention in the course of his oral opening to the fact that I had made clear findings at the first trial that Martin approved the contents of the 2004 Will, and said that I wanted to be told if those findings were challenged. Mr Warwick’s reaction was to say that he was not in a position to do so.[59]Finally, Nurse Hawadi gave evidence for the first time. She appeared desperately nervous at the outset of her evidence, but quickly settled in to the witness box so as to give her evidence clearly and carefully. She gave the impression of being a professional, knowledgable and caring nurse. 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.[60]Mrs Olivia Martin gave evidence that Martin had told her in 2003 that he intended to leave his estate to Anne. This was at a time when the 2002 Will was in place, but I nonetheless accept what she said. The expert evidence[61]Mr Radley was the only expert to give evidence. He had written a careful and compelling report concerning “aided hand” and “inert hand” signatures. In essence, Mr Radley explained that guided hand signatures are generally poorly written because of the awkwardness of the exercise for both parties. In this case, that would have been particularly the case since Martin was propped up in the middle of a 3 foot bed with a chest drain emanating from his right side and an oxygen mask on his face – or at least available for his use. It appears that both Anne and Martin were right-handed, so that Anne is most likely, on this scenario, to have been on his right side, therefore being impeded by the tubes for, and the 1½ litre bottle on the floor collecting fluid from, the chest drain. Mr Radley describes vividly the “considerable palaver” that is likely to have occurred in adjusting the writers’ positions so as to achieve a guided hand signature, and points with surprise to the fact that none of the witnesses has ever made any mention of such a palaver. Mr Radley also explains that guided hand signatures customarily display two characteristics: first, evidence of false starts or marks on the paper, and secondly, an upwards slope to the signature as the hand is guided. Neither of these characteristics is evident in Martin’s signature on the 2004 Will, which is fluent with a considerable range of pen pressure. Mr Radley went into some detail as to the movements required to make the questioned signature, and concluded that it would not have been possible to make the delicate digital dexterity demonstrated by the questioned signature with Martin holding the pen at all.[62]But Mr Radley was considering the matter on the basis of the unanimous account put forward by the three witnesses, namely that Martin’s hand had been shaking when he tried to sign, so that Anne stepped in simply to steady his hand or wrist to stop it shaking to enable him to sign. I accept Mr Radley’s evidence that such a possibility can be realistically disregarded and is not what happened. What Mr Radley was not asked in his many reports to consider, however, was the possibility that Anne actually signed the 2004 Will at Martin’s direction or with Martin touching her hand in some light or symbolic fashion. All the witnesses except Hanora discounted such an event, but Hanora’s recollection was ultimately, as I have said, that “between the two of them they signed the will”. Mr Radley was asked about this in cross-examination, and told me that he could not exclude the possibility that Anne signed the 2004 Will with Martin assisting in some minor way. He said he had not considered that possibility, having looked at the matter from the point of view of what witnesses said. He said that there were a few features of the 2004 Will signature that you find in Anne’s writings, notably the “L”, but there were also differences, notably the “M”.

The law

[63]As to the central issue, I remind myself of two points that I made in the Judgment as follows:- i) “In general terms, the Court will lean in favour of validating testamentary dispositions, wherever that can properly be done (see Sir Francis Jeune P. in Re Peverett [1902] P. 205 at pages 206-7). This case, however, is primarily about whether or not a will was duly executed, and, if it were to appear from the evidence that the Will is not actually the instrument of the Deceased, then it cannot (save in one way) be held to be valid. This is so, even if there is evidence that the Deceased might have wished or wanted to make a will in favour of Anne. If he did not actually do so, and if he did not satisfy the formal requirements of the Wills Act 1837, the Will cannot be propounded”. ii) “As James Munby Q.C. (as he then was) put it in Killick v Pountney (2000) W.T.L.R. 41, which was an undefended undue influence case, at page 71: “The judge in a probate action is concerned in an inquisitorial capacity to seek the truth as to what is indeed the testator’s true last testament, and accordingly is not bound by the manoeuvres of the parties” … But a court cannot and should not make findings without evidence. Thus, if, for example, 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”.[64]Mr Warwick submitted that there was no place for a presumption now that all the attesting witnesses had been called, and that the case must be decided according to the evidence. I broadly accept that submission, but the point of the dicta in Re Peverett and in Killick was not to exhort the court to decide cases otherwise than in accordance with the evidence, but to remind the court of its function in a probate case, which was to give effect, wherever possible, to the testamentary intentions of the deceased. As a matter of history, the court’s probate jurisdiction emerged through the intervention of the Church in order to enforce the last wishes of the dead on conscientious grounds against their next-of-kin. Also, as Mr Warwick pointed out, the supposedly ‘inquisitorial’ nature of the jurisdiction has no real significance here, where all attesting witnesses were called and cross-examined. The central importance of the testimony of the attesting witnesses as witnesses of the court is emphasised in the cases that Mr Warwick cited on this point: see, for example, the leading case of In the Estate of Fuld Deceased [1965] P 405 per Scarman J at pages 409-410.[65]Section 9 of the Wills Act 1837 provides as follows:- “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”.[66]Both sides relied on several authorities concerning guided hand signatures, and wills signed at the direction of the deceased. Mr Warwick submitted that the testator must take “some share in the act of the writing” in order to satisfy the requirement of section 9(a) relying on Lewis v. Lewis (1861) 2 Swabey & Tristram 153. Although that case concerned the signature of attesting witnesses, not the testator himself, it seems to be applicable to a testator in respect of the first, but not the second, limb of section 9(a), as appears below.[67]Mr Buttimore relied on the more recent case in the Court of Appeal in Northern Ireland in Fulton v. Kee [1961] NILR 1 for the proposition that the sufficiency of an assisted signature by a testator does not rest upon an implied direction, provided that there is some positive physical contribution on the part of the testator that is sufficient to indicate an intention to execute his will personally. Lord MacDermott LCJ held obiter that an acknowledgment was not necessary where the testator had, in the presence of the witnesses, directed a will to be signed on his behalf as follows at page 6:- “The first of the section’s alternative witnessing procedures provides that the signing shall be in the presence of the witnesses. The second provides for what is to happen when the will is not signed in the presence of the witnesses. The signing must then be “acknowledged by the testator” in their presence. Like the direction to sign, such an acknowledgement need not be formal or made by the testator in words: see Todd v. Thompson ((1863) 9 L.T. 177.) and Inglesant v. Inglesant ((1874) L.R. 3 P. & D. 172.). The second method of witnessing has no direct bearing on the instant case, for everything respecting the preparation and execution of the second will took place in the presence of the witnesses who were alone with the deceased from the beginning until the end of this will making. But the requirement as to an acknowledgment by the testator was the subject of a submission on behalf of the defendant which may be conveniently noticed now. It was to the effect that if a will is signed by another by the testator in the presence of the witnesses even though the direction to sign and the signing pursuant thereto have already taken place in their presence. I cannot accept this as the meaning of the statute. Where the agent receives his direction in the absence of the witnesses but signs in their presence it would seem that, to comply with the section, the testator must subsequently acknowledge the signature in the presence of the witnesses: see Burke v. Moore ((1875) I.R. 9 Eq. 609.). That is understandable, for in such a case the witnesses, not having witnessed the direction, would have no certain means of identifying the testator with the signature unless he acknowledged it. But where they witness both signature and direction, an acknowledgment by the testator in addition does not appear to be required by either the scheme or the wording of section 9. The signature so directed is within the words “such signature” and it must either be made or acknowledged in the presence of the witnesses. If so made, that is, directed and made before the witnesses, it does not need to be acknowledged. Execution by the testator in his own hand before the witnesses does not require an acknowledgment, and where the act of execution consists of the signature of the testator’s agent together with the direction which makes that signature the testator’s act, the same words of the section give the same alternative. Accordingly, if the signature here were made by direction of the deceased and not by the deceased himself, I would hold, the witnesses being present throughout, that the mere absence of a subsequent acknowledgment would not render the execution defective.”[68]The morning after I reserved judgment, I received a written submission from Mr Buttimore referring to Jenkins v. Gaisford (1863) 3 Swabey & Tristram 93 for the proposition that a will is “signed” by the testator within section 9(a) even if it is signed by another at his direction. From that, Mr Buttimore sought to draw the conclusion that an acknowledgement was only necessary under section 9(c) where the signing was directed or made out of sight of the witnesses. That proposition was clear, as I have already indicated, from the dictum of Lord MacDermott already cited. Mr Warwick responded with submissions that seemed to suggest, wrongly in my judgment, that an acknowledgement under section 9(c) was required in addition, even if the signature was made in the presence of the 2 witnesses. The cases he referred to were all cases where the signature had been made by the testator without the witnesses being present, and for that reason an acknowledgement was required (see paragraph 11.24 of Williams on Wills 9th edition saying:
“The testator must sign his will or acknowledge his signature in the presence of two or more witnesses present at the same time”
(emphasis added); Lewis v Lewis [1908] P 1 at page 4; and In Re Groffman Deceased [1969] 1 WLR 733).[69]Lord MacDermott continued in Fulton v. Kee by explaining what must be done if the deceased does not direct another to sign on his behalf. He said this at pages 6-8:- “If a testator does not choose to direct another to sign in his presence on his behalf, the section, as we have seen provides that he must sign himself. But what has now to be considered, on account of the extreme physical infirmity and weakness of the deceased, Albert Joseph Fulton, and the nature of the evidence as to execution, is what will be enough to rank in law as a signing by the testator himself. Must he append his signature or mark by his own unaided efforts? Or, can he be helped to accomplish the physical act of signing by name or mark? And if so, what participation by the testator will be sufficient? At first blush the language of section 9 might suggest that if a testator could not do the signing by himself, the only permitted alternative was to authorise someone else to do it for him. But by 1837 Parliament must have contemplated that the bodily state of testators would vary enormously and that, apart altogether from the need to cater for illiterates, weakness or other form of physical incapacity might make the task of directing an agent as difficult as that of signing without help. How far such considerations shaped the practice may be a matter of speculation, but the practice certainly developed to the extent of allowing the testator’s hand to be guided or assisted while he signed, and of regarding a signature so made to be the signature, not of an agent, but of the testator. This practice has been recognised by the courts on many occasions and must now be taken as well settled. See, for example, Wilson v. Beddard ((1841) 12 Sim. 28). That case was decided under the English Statute of Frauds (29 Car. 11, cap. 3s. 5), as the testator died in 1826, but the decision is clearly applicable to cases under the Act of 1837. There, the testator signed by his mark on the day before his death. He was extremely ill and his hand was guided by another person. Dealing with this the Vice-Chancellor, Sir Lancelot Shadwell, said “Next, it was contended that what the learned Judge said with reference to the testator’s hand being guided when he made his mark to his will was not law. The judge said that it was necessary that the will should be signed by the testator, not with his name, for his mark was sufficient if made by his hand, though that the hand might be guided by another person; and, in my opinion, that proposition is correct in point of law. … In the light of the authorities there is now, in my opinion, no doubt as to how the first two of the questions which I have posed above should be answered. A testator wishing to execute his will himself need not depend solely on his own efforts; he may be helped to make his signature by name or mark. The extent to which a testator so aided must participate brings us to a difficult borderline which can hardly, in the nature of things, be described in detail or exhaustively. On the cases, however, I think this may be said. The testator must do some physical act in connection with the signing: the sufficiency of the act is not a matter of efficiency or degree, and in itself the act may be quite inadequate to accomplish the signing: but, considered in relation to the surrounding circumstances, it must suffice to indicate, on the part of the testator, in intention to execute his will. A voluntary holding of the pen while the signature is made would be an act capable of manifesting such an intention and of constituting a personal signing by the testator which would satisfy the statute. And the same might be said of a touching rather than a holding of the pen, provided the touching is deliberate and involves some physical act sufficient, in its setting, to evince a testamentary intention. But the word “touch” is ambiguous and capable of creating confusion. It may mean a voluntary touching which is only distinguishable from a voluntary holding by the absence of an appreciable grip. On the other hand, it may merely signify that the pen is physically in contact with some inert part of the testator’s body, such as his hand. In the latter case I do not see how the resulting signature could be regarded as made by the testator within the meaning of section 9 or, indeed, at all. He would have done no physical act in connection with the signing, and the existence of a passive physical contact would not of itself indicate an intention to execute. … In the course of the argument in the present case it was also said that if a testator allowed a passive contact to continue, when able to break it if he so desired, there would be a sufficient participation on his part in the signing to make the signature his for the purposes of the section. I cannot accede to this submission. I have been unable to find any authority to support it; and, apart from that, it seems to me that the section requires 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. 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” (emphasis added).[70]I have extended my citation from Lord MacDermott’s very useful judgment to include the last paragraph above, which makes clear that a direction to sign can be negative as well as positive.[71]In the end, the law applicable here does not seem to me to be much in doubt and may be summarised as follows:- i) A testator may either sign the will himself or direct another person to sign it on his behalf. ii) If the testator directs another person to sign the will on his behalf and that person does sign the will on his behalf, in the presence of the two witnesses, the will is ‘signed’ by the testator within section 9(a), and no subsequent acknowledgement of his signature is necessary. iii) If the testator chooses, instead of directing another to sign, to sign the will himself in the presence of the two witnesses, assisted by another person, the will is only validly signed in accordance with section 9(a) if the testator makes some positive and discernible physical contribution to the signing process, as opposed simply to abstaining from preventing the signing.[72]The difficulty in this case, however, is not in the statement of the applicable law, but rather in the application of the law to the inconsistent factual evidence. It is to that task that I now turn.

Discussion

[73]It is easy to criticise witnesses who give evidence which is thought to be inaccurate or unreliable many years after the events in question. Such criticism is not particularly constructive unless it can be suggested that the evidence has been deliberately given falsely. In the case of the attesting witnesses in this case, that suggestion was not made in cross-examination. I have found, however, that Nurse Haris was reconstructing to assist Hanora. I have found that Nurse Hawadi’s evidence was not reliable, and I have found that Hanora has not told the truth in relation to some relevant and important matters.[74]Mr Buttimore has urged me to take account of the matters of which the evidence is relatively clear and in respect of which there is no substantive challenge.[75]After the first trial, I concluded that Martin wanted to make a will and had indeed approved the contents of the 2004 Will. Indeed as I recorded at paragraph 45 of my Judgment:
“It was not challenged that Martin said he wanted to make a will, nor that he indicated the dispositions he wished to make. It was not challenged even that both Hanora and Mrs Haris went through the draft will with him, and explained its contents so as to check that he was happy with it”
. These matters were, as I have said, no more challenged at the retrial. Of course, we now know that Martin already had the 2002 Will in place, something that was not known at the original trial. But people do change their testamentary wishes at different stages of their life, and I still have no reason to doubt that Martin asked to make the 2004 Will on 11th January 2004, and wanted to sign it on the occasion about which I have heard so much evidence. The first question is whether he succeeded in doing so, and in particular in satisfying section 9(a).[76]Mr Buttimore also relied on the evidence of Nurse Hawadi that the 2004 Will was in Martin’s hand when she entered the room, that it bore no signatures at that stage, and that the witnesses understood their role as being to witness the act of signing, and that the will was indeed signed and witnessed with the two witnesses, Hanora and Anne all present. He asked the rhetorical question: what on earth were they all doing there if not to see that the 2004 Will was validly signed and executed?[77]Mr Warwick on the other hand made a two pronged attack. First, he criticised the conduct of Hanora and Anne in relation to the 2002 Will and the monies held in Martin’s bank accounts. But these criticisms impact only indirectly, in my judgment, on the issues I have now to decide. It is true that I have found that, after the event, Hanora became aware of the 2002 Will and effectively concealed it. I can speculate about her reasons for doing so, but she may simply have thought, misguidedly, that the 2002 Will was irrelevant since it had been superseded by the 2004 Will. It is true that the entirety of Martin’s estate was not, so it appears, declared for probate. And it is true, as I have already said, that Hanora’s evidence was less than wholly reliable. But I have to work with the evidence I have.[78]Mr Warwick’s second attack is also powerful. He says that it is the court’s duty to decide whether the 2004 Will was executed in the manner suggested by Hanora and the two witnesses (and not in any other manner). If it was not, then the court should pronounce against its valid execution. In my judgment, however, the matter is not that simple. I have to try to work out what in fact did happen on the balance of probabilities, doing, as I have said, the best I can on the available evidence. Though the pleaded cases are important, a probate action must proceed to trial even in the absence of a defence (see paragraph 37-04 of Williams Mortimer & Sunnucks on Executors Administrators and Probate 19th edition 2008; CPR Part 57.10(1)). Moreover, bearing in mind the meaning of the terms “sign” and “signed” in section 9(a), Hanora’s pleading that Martin “signed” the 2004 Will is adequate to encompass a case that(a) Martin signed the 2004 Will himself with assistance from another; and/or(b) that Martin directed that the 2004 Will be signed on his behalf. As Lord MacDermott made clear in Fulton v. Lee, a will is “signed” even if it is signed by a third person at the direction of the testator. There is, therefore, in my judgment, no pleading impediment to my finding on the evidence as a matter of fact what happened in relation to the signing of the 2004 Will.[79]Mr Warwick, both in closing and in his written submissions after the trial (to which I shall turn in a moment), objected strongly to Mr Buttimore arguing that Anne had signed on Martin’s behalf. He said he would have cross-examined more strongly on knowledge and approval had the point been raised earlier, and he would have pleaded a reply. But in fact, as I have said, I gave Mr Warwick ample opportunity to object to my findings at the first trial that Martin wanted to make the 2004 Will. He himself said he had no material on which he could do so. Once it was clear that Anne had taken some part in the signing process, it seems to me that Michael and his legal team must have been fully aware of the possibility (which was actually considered by Mr Radley, and not discounted, in his very first report) that Anne had actually signed the 2004 Will.[80]As at the first trial, I was impressed with Mr Radley’s expert evidence at the retrial. He gave his evidence, once again, in a fair and balanced manner. His conclusions that Martin had not signed the 2004 Will himself, and that “the possibility that this is a guided hand signature may be realistically disregarded” were compelling and well reasoned. The signature is obviously well formed without more than minimal wavering. It does not slope upwards. The paper is not marked by false starts or evidence of conflict between Martin and the supposed assister, Anne. There was no evidence about the “palaver” that would have accompanied the likely preparations for the making of an assisted signature by a man as ill as Martin, with the chest drain (and possibly the oxygen) pipes attached to him. The expert evidence, therefore, points clearly to Martin not having played any significant or active role in the signature of the 2004 Will. The smooth signature performed with digital dexterity is simply inconsistent with the evidence of the nurse witnesses. On the other hand, despite Mr Radley’s inability to say whether or not it was Anne that signed the 2004 Will, it seems to me an irresistible conclusion from the remainder of the evidence that she must have done so. The writing is fluent, the ‘L’ is very similar to her writing on the many greetings cards exhibited to Mr Radley’s reports, and even though the ‘M’ is different, that could be simply the result of her writing another’s name.[81]The question then arises as to(a) whether Martin made some positive and discernible physical contribution to the signing process, and(b) if he did not, whether there is sufficient evidence that Anne signed the 2004 Will at Martin’s direction.[82]As to the positive and discernible physical contribution to the signing process, I have ultimately reached a clear conclusion, namely that, even if Martin did have his hand on the pen at some stage, he did not make a sufficient contribution to the signing process to satisfy the required criteria. I say this because I am sure, bearing in mind Martin’s ill health and his position in the centre of a 3 foot bed, that, if he had tried to assist Anne to sign in any significant way, the signature would have been hugely less fluent and clear than it in fact is. I was, as I have said, impressed with Hanora’s statement that Anne came over and “between the two of them they signed the will”. But looking carefully at the several authorities I have been referred to, I simply cannot conclude on the evidence that Martin did play any adequate physical part in signing the 2004 Will. It was signed by Anne. The question is whether it was signed at his direction.[83]At this point, I remind myself of Mr Warwick’s submission that it is simply not open to me to “conjure up” a case for Hanora, and that, if I reject the evidence of all the witnesses to the signing (which included Anne, who told Michael prior to her death that Martin had signed the 2004 Will), I was required to conclude that the 2004 Will was not signed so as to satisfy section 9.[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.[87]I should not end this section of the judgment without reiterating how unfortunate it is that the stories told by Hanora and Nurse Haris changed so dramatically from one trial to the next. I have considered carefully and anxiously why this might have been the case. I find something of an explanation first in the conclusion I have reached, and secondly in the part of Nurse Hawadi’s statement where she explains that as she left the signing session, she “was quite shaken and suddenly felt that, in witnessing the will, I had done something wrong professionally. I then began to regard my witnessing of that will as a bad experience and did not want to think about it any further”.[88]It will be immediately obvious, once I have concluded (as I have) that Anne signed the 2004 Will for Martin, and it is recalled that Anne was the sole beneficiary of the 2004 Will, that Anne signed the 2004 Will in her own favour. I have no doubt that Hanora and the two nurses knew very well, however little they knew about the formalities required for wills, that it was not usual (to put the matter at its very lowest) for a beneficiary to sign such a will on behalf of a testator. From then on, rather as Nurse Hawadi said in her statement, I think that all three of them must have come to think that they had participated in some wrongdoing. This explains why the stories they told me were false in relation, at least, to the central question of how precisely the 2004 Will came to be signed. I am sure that the witnesses tried to make their evidence consistent with one another. But their evidence was not totally false. They were all sure that Martin wanted to make the 2004 Will in Anne’s favour. Nurse Haris had come to know and like Anne and Hanora and wanted to help them. The Nurses may have blotted out what they knew to be the truth. They may even have persuaded themselves that they were unaware of precisely what occurred in the 2 or 3 seconds that followed Martin’s failure to sign by himself. I am sure that all three thought they would get away with an account that concealed the “bad experience” of which Nurse Hawadi spoke. Indeed, they might perhaps have got away with it if this case had not been so assiduously fought by Michael, and pursued to an appeal and a second trial by Hanora.[89]I have to make my findings on the totality of the evidence. And taking the evidence as a whole, including the handwriting evidence, I am satisfied on the balance of probabilities that Martin tried and failed, on account of his physical condition, to sign the will himself, and then by his conduct directed Anne to assist him by doing so on his behalf. There may well also have been an intermediate attempt to sign with Anne assisting Martin by steadying his hand. But I am clearly of the view, despite the evidence of Hanora, and Nurses Haris and Hawadi, that that is not how Martin’s signature was ultimately applied to the 2004 Will.[90]It is always useful to check one’s conclusions in a difficult factual case such as this against the hard evidence in the form of documents or other materials that are not dependent on recollection. It seems to me that my conclusion gives due weight to the well formed nature of Martin’s signature as a matter of fact. It gives weight to the fact that there is no real doubt that the 4 persons concerned entered Martin’s room at a time when Hanora’s draft of the 2004 Will was unsigned and left a little while later with the Will signed and duly witnessed by the two Nurses. There has not been one word of evidence to suggest that on that day, when Martin was in full control of his mental faculties, he wanted anything else other than to make a new will in favour of Anne. In my judgment, he succeeded in doing so.

Knowledge and approval

[91]These findings as to how the 2004 Will came to be signed are not, by any means, an end of the matter. I turn now to deal with the question of knowledge and approval, which, though not formally contested on the pleadings, must still be proved by Hanora. In paragraphs 54-56 of the Judgment, I did not reach any final conclusion on this point, not needing to in the circumstances at that time. I did, however, make it clear that had Martin actually signed the 2004 Will “I would probably have been satisfied … that it represented his true intentions and that Martin had given directions for it”, thus amounting to his knowing and approving of its contents.[92]In paragraph 54 of the Judgment, I made clear also that, since Anne and Hanora were involved in the preparation of the 2004 Will, the second rule in Barry v. Butlin (1838) 2 Moo PC 480 was applicable. As Parke B said in that case: “The second [rule] is that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased”.[93]As Mr Warwick submitted, a will signed by the beneficiary on behalf of the testator, and prepared by the beneficiary’s daughter, must indeed excite great suspicion. One might think that, of all the cases found in the books, the circumstances I have found would excite more suspicion than many, if not any, others. That suspicion needs to be dispelled if the 2004 Will is to be sustained.[94]In the course of this consideration, I considered also section 15 of the Wills Act 1837, which had not been mentioned in submissions during the retrial. That section makes a gift to an attesting witness “utterly null and void”. Plainly, Anne was not an attesting witness, but on the facts as I have now found them, she did act as the agent of the testator to sign the 2004 Will, which was in her favour. When I realised that this might be the position, my clerk asked the parties for their submissions by email in the following terms:
“Mr Buttimore argued (as his latest submissions make clear) that the 2004 Will would have been valid even if signed by Anne at the direction of Martin. The Judge would like to know whether it is contended, by analogy with section 15 or otherwise, that, if Anne did in fact sign the 2004 Will at Martin’s direction, that makes the will or the gift to her invalid or void or in some other way vitiated and, if so, why?”
I asked whether either side wanted the hearing to resume for further oral submissions on the point, and directed written submissions in any event. Neither side sought an additional oral hearing.[95]Mr Warwick responded by objecting, once again, to Hanora raising the contention that the 2004 Will had been signed by Anne at Martin’s direction, suggesting that, had that been made clear, the question of knowledge and approval would have been far more central, relying on Wintle v. Nye [1959] 1 WLR 284, and saying that he would have cross-examined much harder on that issue. He also submitted that:- i) The purpose of section 15 was to create a “bright line” rule that prevented those who signed a will in any formal capacity (whether as witnesses to the signature of a testator, witnesses to the person signing for the testator or signing on behalf of a testator) from inheriting anything under that will. Section 15 should, he contended, be read in order to give effect to that purpose, for the mischief inherent in a beneficiary signing on behalf of a testator is greater than the mischief involved in signing as a witness. He relied on In Re Estate of Bravda Deceased (1968) 1 WLR 479 as demonstrating the way in which effect would be given to section 15, even where the witness was superfluous and where it appeared to defeat the testator’s intentions (though that case was, in fact, overruled by section 1 of the Wills Act 1968); and ii) If section 15 could not be read in such a way as to place signing on behalf of the testator on the same footing as pure “witnesses”, then the court should deploy public policy to deprive the signer of any part of the testator’s estate. He cited Welwyn Hatfield Borough Council v. Secretary of State for the Communities and Local Government (2011) UKSC 15 as an example of where public policy had been used to deprive a party of a benefit where it regarded their conduct as incompatible with a statute.[96]Mr Buttimore submitted that:- i) There was no reason in principle why a beneficiary might not sign at the direction of the testator; this was not forbidden by the Wills Act 1837, section 15 applying only to attesting witnesses. He relied on several cases which show that it is permissible for an attesting witness to sign at the direction of the testator (Re Bailey’s Goods (1838) 1 Curt 914; Smith v. Harris (1845) 1 Rob Eccl 262) as well as the drawer of the will (Re Clark’s Goods (1839) 2 Curteis 329); and ii) There was nothing in the history of the legislation (or the common law) concerning the execution of wills to justify an extension of the ambit of section 15 or to prevent a will from taking effect where it is signed by a beneficiary at the direction of the testator. He referred me to the article by Mr D.E.C. Yates entitled “Witnessing Wills and Losing Legacies” (1985) 100 LQR 453 which considers the origins of section 15 and concludes by advocating a “return to the civilian practice of allowing probate on the basis of evidence given to the court in cases where the attestations at execution were wanting or faulty”.[97]I reject Mr Warwick’s contention that he would or could have acted differently had the directed signature been pleaded. He knew that the point was open to Mr Buttimore, though he argued that it should not be. As I have said, I do not think he could have done more to challenge the evidence, even if Mr Buttimore had made more of the directed signature point. Mr Warwick was constrained by the absence of any concrete evidence concerning the occasion when the signing took place, throwing Martin’s wish to make the 2004 Will into doubt.[98]Counsel have been unable to find any authority in which a will signed by the beneficiary at the direction of the testator has been adjudicated upon, so I have to consider the matter from first principles.[99]The terms of section 15 only make the gift void if an attesting witness is the recipient. They cannot be extended to persons signing at the direction of the testator by any supposed ‘bright line’ rule that is not mentioned in the words of the statute. Since the statute does not cover the extremely unusual situation prevailing in the present case, it seems to me that I could not properly find that the gift to Anne was void. I have, however, borne the analogy with section 15 in mind in reaching my conclusions on knowledge and approval, since it is clear in my judgment that the second rule in Barry v. Butlin should apply with additional force where the agent of the deceased who signs the will is a beneficiary under it. I do not think there can be any public policy beyond the rule in Barry v. Butlin, in the absence of a statutory provision, to mean that a will or a gift cannot be valid if signed by a beneficiary at the direction of the testator. But I entirely accept that such a situation must be most carefully scrutinised. I have tried my best to do just that.[100]Despite all the suspicions that are obvious and those arising from the surrounding circumstances, I am satisfied that the 2004 Will expressed Martin’s true testamentary intentions. I have reviewed all the evidence that was given at both trials with my conclusion that Anne, the beneficiary, signed the 2004 Will at the forefront of my mind. I wanted to see whether the evidence about, for example, how Anne allegedly kept Kathleen and her family away from Martin in his last weeks assumed a new importance. I have carefully considered Mr Warwick’s submissions about how Hanora had “form” for deathbed wills having written out such a will for her brother Thomas only 2 years before, the day before he died. It is obviously important that it could be said that Hanora (who drew up the 2004 Will) and her mother (who signed it) were influencing Martin in the days before he died as the relatives upon whom he was by that time to some extent reliant. Mr Warwick relied also on the fact that no legal advice was sought and obtained on the afternoon of 11th January 2004, and on the suspicious circumstances surrounding Martin’s signature. I have reconsidered in this connection the facts about Hanora’s concealment of the 2002 Will and the additional assets in Martin’s estate, and her behaviour in resisting this claim generally. Despite all these matters, I still do not think that there is any evidence that Martin was pressurised into making the 2004 Will or that he was influenced inappropriately into doing so. Again, I am conscious that I am relying on the findings of three witnesses that I have found to be unreliable for the proposition that Martin knew and approved of the contents of the 2004 Will and wanted to make such a will in Anne’s favour. I realise that it is hard for me to say why he might have changed his mind in the 16 months since he had executed the 2002 Will, but that could probably be explained by the care that Anne had taken of him during his illness. Either way, I have no doubt that he wanted Anne to benefit.[101]In the peculiar, some might say extraordinary, circumstances of this case, I have concluded that Martin knew and approved of the 2004 Will, wanted Anne to benefit under it, and validly directed her to sign it on his behalf. In these circumstances, the 2004 Will was, in my judgment valid, even though it was signed by its beneficiary on behalf of the testator.[102]This may seem a surprising, even an alarming conclusion. It does, however, explain as I have tried to indicate above, why Hanora and the 2 witnesses were so reluctant to be more candid about what actually occurred. Hanora must have realised early on how uncomfortable it would be if she were to be arguing that her mother effectively signed a will in her own favour. Even though this did not form any part of Mr Warwick’s case, nor was it put high on Mr Buttimore’s list of submissions, I am drawn to the conclusion that this is truly the explanation for this case. Since such a situation engages only the second rule in Barry v. Butlin rather than any provision of the Wills Act requiring the execution to be invalid, the 2004 Will can still be valid despite the unusual way in which it was executed. Legislation might be considered to prevent such an event if it were a common occurrence, since it is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity. But that kind of consideration is beyond the scope of this judgment.[103]It would have been so much better if Martin had asked one of the witnesses to have signed the 2004 Will for him (as, for example occurred in Re Bailey’s Goods (1838) 1 Curt 914 and Smith v. Harris (1845) 1 Rob Eccl 262 – see Paragraph 3.78 of Tristam & Coote’s Probate Practice 30th edition). But I remain satisfied that Martin validly executed the 2004 Will, and knew and approved of its contents.

Conclusion

[104]For the reasons given above and in the Judgment, therefore, I conclude on the basis of the evidence now before the court that the 2004 Will was validly executed by Martin, through Anne acting at his direction.[105]I will, therefore, pronounce in favour of the 2004 Will in solemn form and dismiss Michael’s claim. I will hear counsel as to costs and as to the precise form of the appropriate order.

Cited in 2 later judgments