THE MAKING OF A WILL

STATUTORY FORMALITIES

IN COMPLIANCE WITH

WILLS ACT

Written form

signature

Witnesses

Acknowledgement

WRITTEN FORM

Section 5

a will must be in writing so as to become a strong evidence of testators wishes and to prevent fraud (therefore for example a will cannot be videotaped)

Written means anything in form of pencil, printed, typed, computer.

And if there is inconsistency the court will take judicial notice to the one in ink ball point pen

Re Moore

Will can be in code form so long as it can be decodified with the help of other decodifier such as a legend

WRITTEN FORM

Material

Paper is usually used. But there are cases where it was wrote on egg shell etc as long as it is permanent

Hodson V Barnes : Will written on empty egg shell was held valid

Murray - Will written on cigarette packet was held valid

SIGNATURE

Section 5(2)

It must be signed at foot and end

Re Salman - Will signed at the top, therefore the will was held inoperative.

It must be signed with intention and not under influence of alcohol, insane or unconscious. Also not under duress, coercion, fraud

Signature however, need not be in full

Intention means there is an intention to give legal effect to the will

SIGNATURE

Re Chalcraft

The testator was so ill that she cannot even write in full but only wrote "E Chal" but the will was held to be a valid one

B Clarke

It was held that the testator does not have to sign himself. He may also ask a third party to sign for him or on his behalf ( but he must be in right frame of mind and understand what he is doing)

The testator can ask a third party to sign under the third party's name, provided that it is stated so in the will that a third party had signed on behalf of the testator

WITNESSES

Section 5(2)

Witnesses minimum of two persons

The witnesses must see/ attest and then when the witnesses signs the testator must see/ be aware/ attest also

Both witnesses must be aware of what was going on at the time. Thus if a testator signs his will in a crowded room, bus or train, the provision of Section 5(2) would not be satisfied because nobody will be aware of what the other was doing.

WITNESSES

Brown V Skirrow

Testator signed in font of witness A ( first shop assistant) while the second shop assistant was serving a customer and was unaware of what was going on.

Blake V Blake

Testatrix signed her will and later asked the witness to sign. At the time the witness signed the signature of the testator was covered from the sight of the witness by a blotting paper.

Held: it was not a proper attestation as three persons must be present at the same time.

Held:it was not a proper attestation as the witness did not seethe signature (Although the fact that it the testator signed not in the presence of the witness was not in question)

Re Colling

Testator being a patient in hospital asked a nurse and another patient to witness his signature. While he was signing and before he had completed his signature the nurse was called away to. attend to another patient. The testator continued on signing and the other witness signed as well. When the nurse returned, the testator and the patient both acknowledged their signatures and the nurse then added her signature.

held : the attestation was invalid as both the witness did not subscribeto the will after the operative signature ofthe testator

WITNESSES: Capacity of the witness

1) Mentally Sound Adult

We may choose t minor to be a witness but it must be remembered that he may have to go court to testify if there is a contest

Re Gibson

A blind man cannot be a witness. Pearce J said" Witness is the one whohas the faculty of hearing and seeing for the signing act is a visible matter."

Other people who may not be a witness are drunkards, illiterate and people of unsound mind as they are not mentally present when the testator signs

Smith V Thompson

A will is good even though attested by a minor of 16 years old

2) Section 9

The spouse of beneficiaries cannot be a witness

The Estate of Bravda

the spouse attested to the will, and therefore the will failed to be admitted to Probate. ( Therefore the property will be distributed according to the Distribution Act)

Ross V Caunters

He sued the solicitors for professional negligence because he failed top tell him that he cannot be a witness because his wife is a BNF. Therefore she received nothing and the solicitor was held negligent.

WITNESSES: Capacity of the witness

3) Section 10

Creditors can be a witness

4) Section 11

Executors can be a witness unless he is incompetent

WITNESSES: Capacity of the witness