Guiding the testator's hand

Posted: 10th May 2018

Elderly patientThe elderly and infirm sometimes require assistance in the physical act of signing a will. However, as one High Court case made clear, holding someone’s hand is one thing but guiding their pen so as to form letters is quite another.

The case concerned a wealthy man who was said to have executed a final will two days before his death in hospital. The will bequeathed 40 per cent of his substantial estate to a carer who had been looking after him for about a year and her children. The man’s three siblings, who would have inherited the lion’s share of his estate under a previous will, challenged the validity of the later document. The carer agreed that she had held the man’s hand as he signed the document, but said that she had only done so in order to assist him due to his infirmity.

In ruling on the matter, the Court found that, although it may be permissible for a testator to be helped in signing a will, the scope of such assistance must be limited. There was a distinction between leading and steadying a testator’s hand and, in the particular case, the carer had gone too far in guiding the man’s pen so as form the letters of his name. Expert handwriting evidence also indicated that the signature on the disputed will was not that of the testator.

The Court also found in the light of compelling medical evidence that the man lacked the mental capacity to make a valid will. He was extremely ill when the document was purportedly executed and he may have been confused, or even delirious. The carer had been instrumental in arranging preparation of the will and the man’s condition meant that he also lacked knowledge and understanding of its contents. Ruling in favour of the earlier will, the Court declared the later document invalid.