Case Commentary ‘Death Bed’ Wills
Michael Barrett v.Honora Bem, Matthew Bem, Alexander Bem, Sophie Bem, Eta Meehan, Beatrice O’Shea and Eamonn Barrett  EWCA Civ 5
By Yasmin Khan
27th April 2012
The case of Barrett v Bem once again illustrates the problems that can arise from so-called Death Bed Wills.
Facts of the Case
In the case of Michael Barrett v. Hanora Bem and Others, Martin Lavin (“Martin”) changed his Will in favour of his sister; Mrs Anne Liston (“Anne”), a few hours before his death at the age of 69 in 2004.
Martin had apparently signed a handwritten Will drawn up by Anne’s daughter, Ms Hanora Bem (“Ms Bem”) a former legal secretary. The Will was witnessed by two staff nurses.
Anne’s daughter, Ms Bem, and one of the staff nurses who witnessed the Will, said that Martin had signed it without any help or assistance with his signature.
Anne died before the date of the first trial. Martin nephew Michael Barrett (“Michael”) challenged his late Uncle’s Will and Ms Bem defended the validity of Martin’s Will, as she and her respective siblings were to be the beneficiaries of his Will.
The Court heard evidence that indicated Martin was in such a weak state in the hours before his death that he could not write. Two handwriting experts gave evidence in the first trial that it was not Martin’s signature on the Will, leading to Mr Justice Vos declaring that the Will was invalid.
The second staff nurse who witnessed the Will was traced and she recalled that Anne had helped guide Martin’s hand to sign the Will. On the grounds of this fresh evidence the Court of Appeal agreed to an appeal against the original verdict that the Will was invalid. They then directed a re-trial.
At the second trial, Ms Bem was questioned by the Trial Judge she referred to her mother and Martin “between the two of them they signed the Will”. The Trail Judge found this to be a powerful and disarming piece of evidence and Ms Bem had as a consequence had changed her evidence.
The Judge the went on to say that Ms Bem’s comment, “between the two of them they signed the will” had ”a greater ring of truth” than anyone else had said on this point.
The Judge was critical of Ms Bem’s behaviour as she had tried to conceal the existence of a Will that was made by Martin in 2002. Also, Ms Bem had concealed other papers relevant to the Estate which she had failed to disclose to Michael and the Court.
The Staff Nurse who gave evidence at the first trial also changed her evidence and she stated that Anne held Martin’s hand, but not the pen. The Judge concluded that her evidence was “inconsistent”, “unimpressive” and “contradictory”.
The second staff nurse, who had been absent from the first trial confirmed that Martin signed the Will with Anne steadying his hand.
Lord Justice Lewison, President of the Court of Appeal Civil Division, described the matter as a “troubling case” and called for Parliament to act to resolve uncertainty over so-called “guided hand” signatures dating back to the drafting of the Wills Act of 1837.
The Court of Appeal concluded that there was no evidence that Martin had actually asked Anne to sign the Will on his behalf. This was the key legal issue, if there had been evidence that indicated that Martin had given “positive and discernible communication (which may or may not be verbal)’ then the Will would have been valid. The Court concluded that the evidence of certain witnesses was unreliable. As such the Court ruled that the Will was not valid and Martin’s previous Will was to be admitted to Probate.
The troubling point of this whole case is best illustrated by the comments that were made by Lord Justice Lewison, he concluded:
“It is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity and … Parliament should consider changing the law to ensure that this cannot happen in the future.”
This case once again highlights the pitfalls of ‘Death Bed’ Wills and the difficulties that may arise when a person is terminally ill in hospital and wants to make a Will.
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