Formalities of Will PDF

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FormalitiesThe general rule is that the will is invalid if it is not executed according to the formalities stated in section 5 of Wills Act 1959. There are 3 requirements under s of WA 1959, which are the will must be in writing, signature and attestation.In writingThe general rule is provided in s(...

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Formalities The general rule is that the will is invalid if it is not executed according to the formalities stated in section 5 of Wills Act 1959. There are 3 requirements under s.5 of WA 1959, which are the will must be in writing, signature and attestation. In writing The general rule is provided in s.5(1) where it was stated that no will shall be valid unless it is in writing and executed in manner hereinafter mentioned. The exception can be seen in s.26 (privileged wills) where it was stated that Sections 4, 5 and 6 shall not apply to privileged wills, nor is it necessary for a written privileged will to be signed by the testator. In the case of ‘Privileged Wills,’ the exception is that it can be oral. Privileged status is granted to soldiers, mariners or seamen who are in ‘active military service’. Privileged wills may arise in circumstances where a soldier is mortally wounded in combat, and makes a statement or oral disposition of their wishes as to who to leave assets when they die. 

The Wills Act does not define the meaning in ‘writing’. Writing would include typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form. Leong Chee Kong & Anor v Tan Leng Kee – The court takes the definition of writing from Interpretation Act 1948 and 1967 where it includes typewriting, printing, lithography, photography, electronic storage or transmission or any other method of recording information or fixing information in a form capable of being preserved. As long as it can be preserved, the contents until all matters are disposed, fall within the meaning of writing.

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A will written in a combination of ink and pencil may cause issues at probate as there is presumption that the writing made in pencil was merely deliberative and should be excluded from probate. In the Goods of Adams – where a will has first been written in pencil and then inked over, the ink is intended to supersede the pencil. The wills written in pencil are being treated as deliberative and these would be excluded from probate.

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There are no restrictions as to the material a will must be written with or on, which has led to some liberal interpretations. Hodson v Barnes – a will written on an empty eggshell was once held to be perfectly valid. The will can be written on any material, as long as it can be preserved.

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Any language as long as it understandable. Whiting v Turner - the testator was an English man but he made the will in French, nevertheless, the court held that the will is valid. Re Berger – it was held that will written in Hebrew was still valid. Kell v Charmer – will can be written in any language.

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Atter v Atkinson - the will can be typed & prepared by others as long as the testator aware & acknowledges of its contents. Khaw Cheng Bok v Khaw Cheng Poon - Testator has psychiatric problem which caused him to unable in understand the will. It is found that at the time he make such will, he had went to see doctor and doctor said he is fit to make the will. Plaintiff tried to argue that the will had been designed by the lawyer that gives undue influence to the testator, as both of them were best friends. The COA said that the good relationship between the lawyer & the doctor will not affect the validity of the 1990 will. Besides, the appellant who allege the existence of undue influence had never prove to the court that such allege is true. As the testator had read through the 1990 will, that will was counted as the valid one.

Signature s.5(2) – Every will shall be signed by the testator, or by some other person in his presence and by his direction; such signature shall be made or acknowledged by testator in the presence of 2 or more witnesses. 

Signature by testator Normally, the testator signs the will with their usual signature. The testator’s signature may be made in any way, provided there is an intention to execute the will. Thus, initials, a stamped name, or a thumbprint mark all suffice. Circumstances where a mark may be used include where the testator is illiterate or physically unable to sign, and uses their thumbprint to execute the will. This is sufficient to satisfy the legal formality. Re Savory’s Goods – initials was held to be signature. Re Jenkins – the testator sign using a rubber stamp. It was held that the signature is valid because the court held such stamp is intended by the testator to be his signature. Re Finn – a testator put his thumb in the ink bottle and places a ‘blot’ in the will. It was held that the will is valid as such sign is intended to represent his signature, Re Cook – letter attested by witnesses sign “your loving mother” was held to be valid signature. Anything which represents the testator’s signature was accepted as a valid signature. Re Chalcraft – testatrix signed her will ‘E Chal’ instead of E Chalcraft. It is a incomplete signature made by testator due to illness. The court accepted as she had done all that she could in the circumstances. Wilson v Beddard – it was provided that signature includes a mark made where the testator’s hand was guided by someone else. The testator must have intended to give effect to his will by his signature. A lack of intention will invalidate a Will. In Marley v Rawlings, wills made by a husband and wife were held to be invalid as they had accidentally signed each other’s Will, albeit in identical terms. Position of signature

S.5 (2): The signature is signed at the foot of the document. Re Robert – the general rule is that the signature must be at the end of the will creating a presumption that the testator had gone through the whole document before signing. Re Hornby – the testator sign at the side of the will and the court held this as valid. Re Long – a will was written on both pages. The first page has the signature of the testatrix and the second page was the disposition of properties. The court held this as valid as the signature was said to be intended in covering the whole document. Now, signature can be anywhere on the will, provided that it appears that it is intended to give effect to it. 

Signature by other persons A person may sign the will on the testator’s behalf as long as it is in the testator’s presence and at their direction. The testator must also make some positive and discernible communication (acknowledged) that they wish the will to be signed on their behalf by a third party. The person signing may either sign in their own name or in the testator’s name. In the Goods of Clark – the court said that third party signed on behalf of testator is accepted as it has been signed in testator’s direction. The burden of proof is on the propounder of will to prove that the will is valid. Smith v Harris – it was held that an attesting witness can sign on behalf of the testator. Barrett v Bem – Lewison LJ held that the court should not find that a will has been signed by a 3rd party at the direction of the testator unless there is positive and discernible communication by the testator that he wishes the will to be signed on his behalf by the 3 rd party.

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In the presence of 2 or more witnesses The testator’s signature must be made or acknowledged in the presence of at least 2 witnesses, present at the same time. The witnesses do not need to know that the document is a will, but must have the opportunity to see the testator’s signature. If the testator has not signed in the presence of both witnesses then he must acknowledge his signature in their simultaneous presence. There are 3 requirements for valid acknowledgement: 1) the will must have been signed before the acknowledgement; 2) the witness must the signature of the testator; 3) the testator must acknowledge the signature by his words or conduct. Norton v Bazette - the testator signed a will in his office with the witness of his 2 clerks. As his office was too pile up with other papers, he asked both of the clerk to sign (attestation) the will outside his room. The court held the will to be valid. Re Colling – the will is not valid as one of the witness left the scene before the testator finished signing the will, incomplete witness presence. However, it was provided that if

testator did not sign in front of 2 witnesses, but later acknowledge the signature in front of 2 witnesses at the same time, the will is valid. Attestation Each witnesses must either attest and sign the will or acknowledge their signature in the presence of the testator. There is no requirement for the witnesses to sign in one another’s presence. Presence of witness Dr k shanmuganathan v periasamy – the will was signed in front of 2 witnesses, the 2 witnesses need to attest. It is provided that it is not necessary for the witnesses to attest at the same time as long as the witness attest in front of the testator. Brown v Skirrow – the witnesses need not sign in the presence of each other. This mean that the 1st witness can sign on Monday in front of the testator, and another one can did the same on the other day without the presence of the 1st witness. Casson v Dade – the testatrix travelled to his lawyer’s place by carriage, to sign the will. Due to hot day, she went back to sit in her the carriage. When she was in the carriage, she could not in fact see the witness through the window of office, but at the very moment when the witnesses were signing, she purposely moved to a place that can see witness through the window. Testatrix would have been able to see the will being signed through a window. The will valid as the attestation was good. Capacity of witness Section 8 - Will not to be invalidated by reason of incompetency of attesting witness. Section 9 - Gifts to an attesting witness or to wife or husband of attesting witness to be void. Beneficiaries under the will should not be witnesses, and those married to a beneficiary must not witness a will. If any beneficiary witnesses the signing of the will, that person effectively relinquishes their entitlement under the will. Likewise, if a person married to a beneficiary witnesses the will – the beneficiary will not take their entitlement under the will’s terms. However, the will itself will not be invalid. o Thorpe v Bestwick – the disqualification must exist at the period of attestation of will. In this case, the will left property to a female beneficiary, but later before the death of testator, she married one of the witnesses. The gift was still effective as the disqualification did not exist during period of attestation. If the solicitor fail to advice the client that spouse of beneficiary cannot be a witness, the solicitor will be liable for negligence and he can be sued by the propounder/executor (beneficiary). o Ross v Caunters – The solicitor fails warn testator that the will should not be witnessed by the spouse of a beneficiary. The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary. Section 10 - Creditor attesting a will charging estate with debts shall be admitted a witness

Section 11 - Executor not incompetent to be a witness

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o Executor cannot be the witness of the same will, but the spouse of the executor can be a witness. Smith v Harris - person who sign the will upon the direction of the testator still can be an attesting witness of the will. A witness can be anyone of the testator’s choosing provided they are mentally and physically capable of attesting at the time they sign. ‘In the presence of the testator’ refers to physical and mental presence. l The 2 witnesses must have attained the age of majority, which is 18 years old. A person who is blind may not act a witness as they are incapable of witnessing the physical act of signing the will. A person who is drunk, unconscious or unsound mind cannot act as a witness.

Form of signature s.5(2), (O.71, r.9) Ordinarily the witnesses should sign using their usual signature and underneath the testator’s signature. Re Goods of Ashmore – they may sign by marking the will in some way intended to be their signature. The position of the signature is immaterial but it must be placed on the Will in the presence of the testator who is mentally and physically in a position to see the witnesses signing. If the witnesses’ signatures are not made on the same sheet of paper as the will they must be made on a sheet of paper physically attached to the will. In the Goods of Braddock – the witnesses to a codicil signed on the back of the will that the codicil was attached to. The codicil was held to be valid. Presumption of due execution (O. 71, r. 9 of Rules of Court 2012) 

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Where a will appears to be duly executed there is a presumption of due execution, though this is a rebuttable presumption. An attestation clause raises a stronger presumption that the Will was duly executed than if no such clause is present. O.71, r.9 – where a will contains no attestation clause/ clause is insufficient, the registrar shall require an affidavit as to due execution from one or more of the attesting witnesses. Presumption: will is regular on the face of it with a proper attestation clause of signature of testator & witnesses; Couser v Couser - A witness to the execution of a will can acknowledge his own signature in the later presence of the second witness.

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Rebuttal: by evidence of the attesting witness or otherwise; Weatherhill v Pearce - The testatrix had signed her name by the attestation clause before it was witnessed. It was held that a pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her intention to give effect to the will, satisfied the UK law’s attestation requirements.

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Burden of proof is on the executors or person who setting the will (Re Loh Ah Tong v Tan Ah Eng)

Valid Will In order for will to be valid, there are 2 elements that needs to be consider; capacity and intention (animus testandi) Capacity can be further devided into 2; age and soundness of mind Intention can be further devided into 3; suspicious, mistake and undue influence A. Capacity 1. Age The age of a person making a will must be over 18 as stated in the provision in Age of Majority Act 1971. 2. Soundness of mind Sound mind means that a state of a person who understand the nature of his act. In the case of Bank v Goodfellow, the court stated that soundness in mind must be present at the time of making the will. Sound mind in this case refer to an understanding of the nature of the business which he is engages on. BANKS v GOODFELLOW PRINCIPLE: The soundness of mind mean 3 things: i. The testator must know that he is making a will (intention of the testator). ii. He must directs his mind to the prop. (Know the nature and quantity of the distributed prop.) iii. At the time (so if he get crazy before or after the execution of the will, he still considered as a sound mind) of the execution of the will, he must know and understands how the prop. is disposed. (The term & conditions of the distribution.) In Harwood v Baker, soundness in mind can be ascertain when the person is at least aware of the other person who may have claim on his estate even if he decide not to benefit them. Burden of proof lies on the propounder who possess the duty to proof that the will is valid under the degree of balance of probability. a. Delusion Delusion means irrational believe which can't be eradicated by rational argument. Bank v Goodfellow FACT: The testator was affected by various delusion, particularly that he was being pursuit by an evil spirit. HELD: The will created was valid due to the fact that the interval of the evil spirit is not continuously.

In Re Bohrman, the court stated that when a testator is unsound in mind, the will that he created can be either partial or wholly invalid as determined by the court. In Ewin v Bennett and In the Estate of Walker, soundness in mind need to be present at the time the will is created and also, there must be some interval when there is a delusion for the will to be valid. b. Old People/Age If there is a doubt of the soundness mind of an old people, medical report of their condition must be obtain from a medical practitioner. c. Drunk In Chana v Chana, the court held that for a heavy drinker who drink regularly, the will made by them is valid because they are not drunk at all time, thus, the habit of drinking will not prevent the person from creating a valid will. B. Intention The testator must have the intention to create the will. The testator must have the knowledge of the content of the will. The testator must have approve the content of the will. Determination of intention can be seen in the case of Re Khibbs, where there must be a statement of the deceased wishes for the disposition of his properties upon his death and it is conveyed to the witness. 1. Suspicious If the will is suspicious in the eye of the court/judge after there is an application of probate, the court would not grand the probate In the case of Barry v Butlin, the court need to make sure that the suspicious is removed before the probate can be granted 2. Mistake Mistake can be defined as an error in comprehending facts, meaning of words or the law, which causes one party or both parties to enter into a contract without understanding the obligations or results. There must be no mistake when the executor execute the will. If there is a mistake on the will or on the creation of the will, the testators said to not have the testandi/intention. In the case of Re Meyer, when there is a mistake, the court may decide that the will was made without the testator knowledge and approval, thus, can be deemed invalid. Mistake need to be considered on 2 ground; content and document. 3. Undue influence, fraud and coercion

In order to make a valid will, the court need to ascertain that the will is not make under undue influence, fraud or coercion.. In Hall v Hall, the court decided that there must be no coercion, where a testator may be 'led but not driven'. This means that the testator may be guide in making the will but not force. Coercion in this case refers to threat or pressure to the testator. In the case of Wilkinson v Joughin, the court stated that fraud happen when the testator has been deliberately deceived by a person or being fraud, thus, the will is invalid....