Wills - Definition - Law Dictionary Home Dictionary Definition wills

Definition :

Wills. A will is the valid disposition by a living person, to take effect after his death, of his disposable property. ''But in law ultima voluntas in scriptis is used, where lands or tenements are devised, and testamentum, when it concerneth chattels': Co. Litt. 111 a.

Depository of Will of Living Person.-By the (English) Jud. Act, 1925, s. 172, replacing s. 91 of the Court of Probate Act, 1857:-

There shall, under the control and direction of the High Court, be provided safe and convenient depositories for the custody of the wills of living persons, and any person may deposit his will therein.

And see (English) Administration of Justice Act, 1928 (18 & 19 Geo. 5, c. 26), s. 11, as to deposit of wills under control of the High Court.

Law before 1838.-The right of testamentary aliena-tion of lands is a matter depending on Act of Parliament. Before 32 Hen. 8, c. 1, a will could not be made of land, and before the Statute of Frauds a will (see NUNCUPATIVE WILL) could be made by word of mouth. Moreover, the testamentary power conferred by the statute of Hen. 8 did not extend to infants or married women. The Statute of Frauds, 1677, by s. 5 required wills of land to be in writing signed by three credible witnesses, and ss. 19-24 required nuncupative wills, where the estate be-queathed should exceed 30l., to be proved by three witnesses at the least, and to have been made at the time of the last sickness of the deceased, and in his dwelling-house or where he had resided ten days before; that after six months no nuncupative will should be proved, unless the words or their substance had been committed to writing within six days; and that no probate should be granted till after fourteen days from the death of the testator. These and many subsequent enactments are all and wholly repealed by s. 2 of the Wills Act, 1837, which does not extend to Scotland, where, as generally in Europe, except in England and Ireland, a man cannot deprive his wife and children of a reasonable part (see REASONABLE PARTS) of his personal property.

The (English) Wills Act, 1837, deals with four classes of subjects touching wills, viz.:-

(1) What may be the subject-matter of wills.

(2) Who may execute a will.

(3) What are the formalities required in the execution of a wills.

(4) How wills are to be construed.

The first s. enacts that the word 'will' shall extend to a testament, and to a codicil and to an appointment by will or by writing in the nature of a will in exercise of a power, and to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of 12 Car. 2, c. 24, or of 14 & 15 Car. 2 (Ireland), and to any other testamentary disposition, and also defines the meaning of the words 'real estate' and 'personal estate' as used in the Act.

The second s. (repealed by 37 & 38 Vict. c. 35) repeals (amongst others) prior Acts relating to wills, leaving unrepealed, however, that part of Magna Charta which presented to a man's wife and children their 'reasonable parts.' See REASONABLE PARTS.

The third s., termed the 'general enabling clause,' as explained by the Law of Property Act, 1925, s. 178, enacts that it shall be lawful for every person to devise, bequeath, or dispose of all real and personal estate which he shall be entitled to at the time of his death, notwithstanding that by reason of illegitimacy or otherwise he did not leave an heir or next-of-kin surviving him.

The fourth and fifth sections relate to dispositions of copyhold estates, and the sixth to estates pur autre vie of a freehold nature. See SPECIAL OCCUPANCY.

(2) Who may execute a will.

The seventh s. enacts that no will made by any person under the age of twenty-one years shall be valid, repealing the old law, by which an infant of the age of fourteen years if a male, or of twelve years if a female, could make a valid will of personalty, although not of realty; and the eight, that no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of the Act; but this s. is impliedly repealed by the Married Women's Property Act, 1882. See MARRIED WOMEN'S PROPERTY.

(3) How wills are to be executed (ninth s.). see EXECUTION OF WILLS; ATTESTATION CLAUSE.

The tenth s. requires wills in exercise of powers of appointment to be executed like other wills. See APPOINTMENT.

The eleventh s. excepts from the rule that all wills must be in writing, wills of personal estate made by soldiers in actual military service, or seamen at sea. This exception includes military and naval officers of all ranks. A will made under this s. requires no attestation, and s. 15 does not apply to it; see Re Limond, (1915) 2 Ch 240. The (English) Wills (Soldiers and Sailors) Act, 1918, declares that the s. authorized any soldier being in actual military service, or any mariner or seaman being at sea, to dispose of his personal estate, although under 21 years of age, as he might have done before the passing of the Act of 1837. S. 11 is extended to members of H.M. naval and marine forces, when so circumstanced that if they were soldiers they would be in actual military service within the s., and 'soldier' now includes a member of the Air Force. The Act of 1918 extends the operation of s. 11 to real property in the case of persons within the section. See NUNCUPATIVE WILL.

The twelfth s. (now repealed) dealt with petty officers, seamen, and marines. It has been replaced by the Navy and Marines (Wills) Acts of 1865 to 1930. See above.

The fourteenth s. enacts that if any person who shall attest the execution of a will shall at the time of the execution, or at any time afterwards, be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.

The fifteenth s. enacts that if any person who shall attest the execution of any will, to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, etc., shall, so far only as concerns such persons attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devises, etc.

The sixteenth s. enacts that, in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor whose debt is so charged, shall attest the execution of such will, such creditor shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.

The seventeenth s. enacts that no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof.

With regard to the revocation of wills, it is enacted by the eighteenth s. that every will shall be revoked by marriage, but if the will has been made in contemplation of a particular marriage it will not be revoked by that marriage: Law of Property Act, 1925, s. 177, and see Sallis v. Jones, 1936, P. 43, except a will made in exercise of a power of appointment, when the estate thereby appointed would not, in default of appointment, pass to the heir, executor, or administrator, or person entitled as next of kin under the statute of Distributions; by the nineteenth s., that no will shall be revoked by presumption of an intention on the ground of alteration in circumstances; by the twentieth s., 'that no will or codicil shall be revoked otherwise than as aforesaid, or by another will or codicil executed in the manner hereinbefore required or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same'; and by the twenty-third s., 'that no conveyance or other act made or done sub-sequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.'

The twenty-first s. relates to obliterations, inter-lineations, and other alterations in wills, and enacts 'that no obliteration, interlineation, or other altera-tion made after execution shall be valid except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed as is required for the execution of the will, but the will with such alteration as part thereof shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in some part of the will.'

As a rule if the testator and each of the witnesses respectively signs his initials in the margin against or near each alteration or interlineation, it will be accepted for probate: see In the Goods of Blewitt, (1880) 5 PD 116.

By s. 175 of the (English) Law of Property Act, 1925, contingent, specific or residuary devises of real or personal property carry the income, and see the (English) Trustee Act, 1925, s. 31.

S. 179, (English) L.P. Act, 1925, enables testators to incorporate the Statutory Will Forms in their wills: see Statutory Will Forms, 1925, S.R. & O. 1925, No. 780/L 15.

With regard to the revival of a revoked will, provided for by the twenty-second s., see RE-PUBLICATION OF WILLS.

As to wills of British subjects executed abroad, and of foreigners dying in this country, see DOMICIL, and the Wills Acts, 1861 (24 & 25 Vict. cc. 114 and 121), and see RENVOI.

(4) How wills are to be construed.

As to the time from which a will speaks, the twenty-fourth s. enacts 'that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of

the testator, unless a contrary intention (see Re Chapman, 1905, AC 106, as explained by Re Hewitt, 1926, Ch 740) shall appear by the will.' The effect of this is that if a legatee die before the testator, the representatives of the legatee take nothing, the legacy 'lapsing' for the benefit of the residuary legatee or next of kin, but from this rule of lapse the thirty-third s. makes an important exception for legacies to children or other issue of the testator who may have died leaving issue living at the testator's death: in such a case the legacy takes effect as if the death of the legatee had taken place immediately after the testator's death. And s. thirty-two provides in certain events against the lapse of devises of estates tail.

By the (English) Law of Property Act, 1925, s. 176, a tenant-in-tail in possession may bar the entail by disposing of the entailed property by his will if executed, confirmed or republished after 1925, by a devise or bequest referring specifically either to the property or the instrument under which it was created or acquired, or to entailed property generally. If not so disposed of, the property does not become subject to his debts and liabilities under s. 176. The s. extends to estate tail created either before or after 1925 but does not apply to tenants in tail after possibility of issue extinct or to a tenant-in-tail who is restrained by statute from barring or defeating the entail.

S. twenty-five includes lapsed and void devises in a residuary devise; s. twenty-six makes a good devise of lands include copyholds and leaseholds as well as freeholds; s. twenty-nine provides that words importing failure of issue shall mean issue living at his death; and s. thirty and thirty-one deal with the estates of trustees.

As to the expressions necessary to execute a general power, the twenty-seventh s. enacts that a devise or bequest in general terms of real or personal property shall be construed to include any property coming within the description which the testator may have power to appoint in any manner he may think proper, unless a contrary intention shall appear. Under the old law it was necessary that such a devise or bequest should refer either to the power or to the specific property which was the subject of it, in order that it might have that effect, and this is still the rule where the testator has only a special, as distinguished from a general, power of appointment.

As to the devise of a fee, the twenty-eight s. enacts 'that where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee-simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will.' Under the old law only a life estate passed, unless words were used to show an intention to pass the fee.

As to stealing wills, see (English) Larceny Act, 1916, s. 6. Forgery of a will is a felony punishable with penal servitude for life. [see (English) Forgery Act, 1913, s. 2 (1)]

And see Jarman, Hawkins, or Theobald on Wills; and Chit. Stat., tit. 'Wills'; and EXECUTION OF WILLS; LAPSE; PROBATE; MARRIED WOMEN; and, for Scots Law, HOLOGRAPH.