Formalities Study Notes
Formalities Study Notes
- Generally a will is a document in writing by which the person making it provides for the distribution or
administration of property after his/her death. It also revokes previous wills.
- A will is ambulatory i.e. it has no effect until the T dies and therefore cannot confer benefits whilst the T is alive.
- It must be executed with certain formalities which are prescribed by Wills Act 1979
- A codicil is a testamentary document made subsequent to a will which may confirm, add to, vary or revoke the
will. S2 of the Wills Act states that will extends to codicil.
- A codicil is executed with the same formalities as a will.
Signature Discussed
- Will must be signed by T or someone in his presence and by his direction.
- T may sign will by making some mark intended by him to be his signature instead of his name such as by
o a stamp bearing his signature;
o his initials;
o an X; and
o an ink-smudged thumb: Re Finn 1935
Incomplete
- An incomplete signature due to loss of consciousness was held to be good as it was the best that could be done
in the circumstances: Re Chalcrafts Goods 1948
- However, in Re Colling 1972 the court held that a will may be invalid, if a witness leaves b4 the T completes his
signature, even if he acknowledges the signature before the witness attests it.
1
Kell v Charmer & S3 Interpretation Act, writing: includes printing, lithography, typewriting, photography and other modes of
representing and reproducing words or figures in visible form.
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o C, while a patient in hospital, started to sign his will in the presence of a nurse and another patient.
o Before he had completed his signature the nurse left to attend to a patient elsewhere in the ward.
o During her absence C completed his signature and the other patient signed as witness.
o On nurses return they acknowledged their signatures to her and she signed as a witness.
o In an action by the E to determine whether Cs signature complied with Wills Act,
o Held: that part of Cs name which was subscribed before the nurse left was not his signature nor was it
intended to represent the name and so it did not comply with Wills Act.
o Chalcraft was distinguished.
Erroneous/Assumed Name Signed
- An erroneous/assumed name is good if:
o It is intended to be Ts name/ a description which sufficiently identifies him; and
o It is intended to represent his name
- In In the Estate of Cook 1960 the T wrote your loving mother instead of her usual signature and the court
accepted this as a valid signature.
Other person signs for T
- Where a person signs for a T in his presence and by his direction he may either sign the Ts name or his own
name: In Re Clark 1839.
- An attesting witness may sign for T but the attestation clause should show that the will was signed by another
person, signing his name or the Ts, by Ts direction and in his presence and that the will was read over to him
and he appeared to fully understand the same: Re Bailey.
Presence Discussed
- Not necessary that T actually sees the witnesses sign, nor need they see him sign.
- It is good enough if the person in whose presence the signature is made could have seen the signing if he wished
to do so.
- It is not sufficient if a witness is present in the same room but is not aware that the T is writing: Brown v Skirrow
1902
o Where a T signed her will in a shop, and 1 witness, who saw her sign, attested it, but the other witness
being at the time when T and 1st witness signed engaged at the other side of the shop with a person who
stood between him and the T, did not see them sign and did not know nor have the opportunity of
knowing anything about what they had engaged upon until after they had signed, when he was asked to
be a witness:-
o Held: that the T did not sign in the presence of the 2nd witness.
- or if a witness leaves before the T completes his signature: Re Colling 1972-See above.
Gifts to Witnesses
s10. Gift to Attesting Witness to be void
- Where attesting witness or their spouse given any benefit under will he attests, such benefit as it concerns the
attesting witness, their spouse or any other person claiming under them is null and void.
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- Notwithstanding benefit conferred on attesting witness, s/he shall be admitted as a witness
o to prove execution of will; or
o validity/invalidity thereof
Discussion
- Any gift in a will of a beneficial interest to a witness or to a witness spouse is void.
- The witness is h/w a good witness.
- A gift to a witness merely as a trustee is good: Re Rays Will Trust v Barry 1936:
o A T, who was a nun in a convent, by her will gave all her property to the person who at the time of her
death should be or should act as abbess of the convent.
o The will was attested by two nuns belonging to the convent, one of whom was subsequently elected
abbess and held that office at the time of the Ts death:-
o Held: that the will did not create a beneficial legacy or gift to the abbess personally, but that the gift was
one in trust for, and as an addition to the funds of the community, and was not invalidated, under s15 of
Wills Act 1937, by the attestation of the will by the witness who afterwards became abbess.
Superfluous Attestation
- S6 above says 2 or more persons required to attest Ts signature.
- Where more than 2 persons sign, the presumption is that they do so as witnesses so the gifts to them are void,
but if after the execution another person adds his name the court will not without cogent evidence conclude
that he signed as witness.
- The presumption that any person (except T) whose signature appears at end of will signed as an attesting
witness can be rebutted. The court may order that such signature be omitted from probate: In the Goods of
Sharma 1869:
o The deceased made a will in favor of one person only, and after bequeathing to her certain specified
articles of property, he added, and all other chattels; these last words were held to cover the general
residue.
o Held: Where a will has been executed in the presence of 2 witnesses, and in addition to their signatures,
the signature of a 3rd person, who is also a residuary legatee appears at the foot of the will, the court will
receive evidence to explain why such signature was written, and if it be satisfied that it was not written
with the intention to attest the signature of the deceased, it will order it to be omitted in the probate.
- Cf with Bravda- DOESNT APPLY to us.
Mental Capacity
- To make a valid will a T must:
o Have testamentary capacity i.e. mental capacity to make will
o Must know and approve of the contents of the will; and
o Must not have made it as the result of the undue influence or fraud of another person.
- Note that the Wills Act doesnt provide that mental capacity is necessary but it is the common law that does.
- The T must have attained the age of 18 years and complied with all the statutory formalities for making a will
except in case of privileged wills.
Testamentary Capacity
- T must have a sound mind, memory and understanding: Banks v Goodfellow 1870. T must understand the:
o nature of the act and its effects
o The extent of property hes disposing
o Comprehend and appreciate the claims he ought to give effect:
No disorder of the mind should poison his affects, pervert his sense of right or pervert the
exercise of his natural faculties.
No insane delusion should influence his wil,l in disposing of the property and bring about a
disposal of it, which, if the mind had been sound he would not have made.
- The capacity to make a will may also be affected by drugs, drink, illiteracy, blindness and old age and infirmity.
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- Where T is elderly/seriously ill or it is anticipated that the will may be challenged on the ground of lack of TC, it is
prudent to arrange for the T to be examined by a medical practitioner, who if satisfied as to his mental capacity,
may attest the will: Re Simpson 1977.
-
Delusion
- A delusion which influences or is capable of influencing the provision of Ts will deprives him of testamentary
capacity.
- A delusion is the belief in the existence of something which no rational person could believe and which cannot e
eradicated from the Ts mind by reasoning with him: Dew v Clark.
- If a delusion doesnt have any influence on him in the making of his will, then the delusion doesnt deprive him
of testamentary capacity.
- Usually there is an indication on the face of the will that the T is affected by an insane delusion- this may have to
be proved by extrinsic evidence.
Burden of proof
- It is for person propounding the will to satisfy court that the will is valid and that the requisite mental capacity
was present when the will was made: Barry v Butlin.
- If will rational on its face the person attacking it will have to prove lack of mental capacity: Dew v Clark.
- If a will is irrational on its face there is a presumption that the T lacked mental capacity and the person
propounding it must satisfy the court of the Ts mental capacity.
Lucid Interval
- Will may be made during a lucid interval.
- Length of time of the interval can range from for instance one hour, or a day: Yatman case:
o Probate of will granted although the will was made during a lucid interval one day and insanity had
caused the T to commit suicide the next day.
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