By John Bingham
31 Jan 2012
Martin Lavin changed his will in favour of his sister, Anne Liston, a few hours before his death at the age of 69 in 2004.
He had apparently signed a handwritten will – drawn up by Mrs Liston’s daughter, a former legal secretary – at his hospital bedside, with two nurses acting as witnesses.
But yesterday three Court of Appeal judges agreed that Mrs Liston “stepped in” and signed the document herself – because her brother was too weak to hold a pen.
Although Mrs Liston also died a few months later, two sets of their descendants have been in dispute over Mr Lavin’s intentions ever since.
In that time the costly legal battle has come before the courts four times.
It bears similarities to the fictional matter of Jarndyce and Jarndyce from Charles Dickens’s Bleak House in which a will dispute drags on for generations until it is swallowed up by costs.
First challenged by Mr Lavin’s nephew, Michael Barrett, the deathbed will was declared invalid – a decision quashed on appeal – then valid and now invalid again.
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.
At one point the legal argument delved into the wording of fraud laws drafted in 1677.
Born in County Sligo, Ireland, one of 15 children, Mr Lavin worked in the construction industry, earning his money on big projects in the Middle East, before settling in London in the 1980s.
By the time of his death he had £100,000 in savings and a home in Greenford, west London.
The court heard that Mr Lavin was in such a weak state in the hours before his death that he could not write.
Initially Mrs Liston’s daughter, Hanora Bem, and a nurse who witnessed the will, said that he had signed it without any help.
But two handwriting experts gave evidence in the first trial that it was not his signature, leading to Mr Justice Vos declaring the will invalid.
Then the other nurse witness was traced. She recalled that Mrs Liston had helped guide her brother’s hand, triggering a retrial.
When the case came for retrial the following year, the judge rejected the main evidence of the key witnesses as unreliable and noted that Hanora Bem had “concealed” the existence of a previous will Mr Lavin signed in 2002.
But he nevertheless upheld the deathbed will concluding that Mrs Liston had signed it under her brother's direction and with his “knowledge and approval”.
That decision was reversed yesterday Lord Justice Lewison, sitting with Lord Justice Maurice Kay and Lord Justice Hughes, who concluded that there was no evidence that Mr Lavin had actually asked his sister to sign the will on his behalf.
Lord Justice Lewison 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."
SOURCE: The Telegraph, UK
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