CHAPTER II,

WILLS.

Who may make a Will.

In another portion of this work we considered the subject of wills with special reference to the law of property. Our present task is to consider wills with special reference to the business of the Probate Division.

tion.

The attention of the reader has already (1) been directed to the Juris licfact that although it would seem that any judge of the High Court has jurisdiction to grant probate or administration, yet that practically the jurisdiction is vested in the Probate, Divorce and Admiralty Division, as being the particular branch of the Court that is appointed for the purpose of granting administration and probate of wills (2).

True it is that the executor's right is derived from the will and not from the probate, and probate has been judicially characterized as "a mere ceremony," "evidence of the executor's right." But it must be borne in mind that it is an indispensable ceremony: "I consider that in all branches of the Court the only evidence of a will of personal estate is the probate, and that before you can ask the Court to look at the will and to grant any relief upon it you must prove it" (3).

The essentials to the validity of a will are:

(1) That the testator be of full age (for by the Wills Act a Essentials minor's will is invalid (4)), and of sufficient testamentary

capacity.

(2) The will must be made and executed in accordance with the provisions of the Wills Act (ante, p. 158, et seq.).

(3) There must be no fraud or undue influence on the part of the person who applies for the probate.

of a will.

There must not be lack of discretion nor lack of free will (5).
What is the legal test of sufficient "testamentary capacity?" Testamen-

(1) Ante, p. 356.

(2) Per James, L.J., Dowdeswell v. Dowdeswell, 9 Ch. D. 294, 301, and see Priestman v. Thomas, 9 P. D. 210. See note ante, p. 356.

(3) Per Jessel, M.R., in Pinney v.
Hunt, 6 Ch. D. 98.

() 1 Vict. c. 26, s. 7.
(*) Dixon, Probate, p. 6.

tary capacity.

Testamentary capacity.

Burden of proof.

Execution of will.

The law on this subject is that the fact that a man is capable of transacting business, whatever its extent, or however complicated it may be, and however considerable the powers of intellect it may require, does not exclude the idea of his being of unsound mind.

A man, the President said, might be a good carpenter, and yet be tainted with insanity to such an extent as to render him irresponsible for a crime, on the ground that he did not know the nature of the act; and similarly the fact that a man possessed capacity to deal with complex subjects, to write pamphlets, and to make calculations, had nothing whatever to do with the question whether or no he was of unsound mind with reference to making his will. On the other hand, it must be borne in mind that, if the delusions could not reasonably be conceived to have had anything to do with the deceased's power of considering the claims of his relations upon him and the manner in which he should dispose of his property, then the presence of a parti cular delusion would not incapacitate him from making a will.

The extremely delicate and difficult investigation which was requisite to determine whether a testator possessed testamentary capacity might, the Court said, be illustrated by reference to the physical world. There might be a little crack in some geological stratum of no importance in itself, and nothing more than a chink through which water filters into the earth; but it might be shown that this flaw had a direct influence upon the volume or colour, or chemical qualities of a stream that issued from the earth many miles away. So with the mind. Upon the surface all may be perfectly clear, and a man may be able to transact ordinary business or follow his professional calling, and yet there may be some idea through which in the recesses of his mind an influence is produced on his conduct in other matters. The jury have to say whether or not the flaw or crack in the testator's mind was of such a character that, though its effect may not be seen on the surface of the document before you, it had an effect upon him when dealing with the disposition of his property (1).

The burden of proof, however, it must not be forgotten, rests upon those who propound the will, and, à fortiori, this principle applies when it appears that the testator was subject to delusions.

The second essential of the validity of a will, viz., its execution according to the formalities prescribed by the Wills Act, has already to some extent been considered (ante, p. 158, et seq.), and

(1) Smee v. Smce, 5 P. D. 81.

testandi.

shall be considered hereafter (post, p. 965), but the third essential Animus of the animus testandi may now be noticed. "To make a good will," as was said in a leading case, a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like-these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure, of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition, without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, Undue though no force is either used or threatened. In a word, a tes- influence. tator may be led, not driven, and his will must be the offspring of his own volition, and not the record of some one else's" (1).

persons.

Α person deaf and dumb from nativity is, in presumption of Deaf and law, an idiot, and therefore incapable of making a will; the dumb presumption may, however, be rebutted, and if it sufficiently appears that such person understands what a testament means, and has a desire to make one, he or she may by signs and tokens declare his or her testament. If a person who is not deaf and dumb by nature, but being once able to hear and speak, by some accident loses both hearing and speech but is able to write, such person may make with his or her own hand his or her will or testamentary document.

illiterate persons.

A blind or illiterate person is capable of making a will, but Blind or before such will is admitted to probate, or administration with the will annexed is granted, proof must be given to the registrar that the will was read over to the testator before its execution, or that the testator had at such time knowledge of its contents. In a case decided in 1885 (2) the President stated that from his long experience in Court he found that there was no subject upon which there was a greater misapprehension than that of "undue influence," and he accordingly carefully expounded the law with regard to that important subject. After pointing out Undue that one person might have an evil influence over the other and influence. might encourage him in evil courses, and thus obtain a will in

(1) Hall v. Hall, 1 P. & D. 482; and see Boyse v. Rossborough, 6 H. L. 34.

(2) Wingrove v. Wingrove and Others, L. R. 11 P. D. 81.

Undue influence.

her or his favour, and that that, shocking as it might be, would
not amount to "undue influence," his Lordship proceeded as
follows: "To be undue influence in the eye of the law there
must be-to sum up in a word-coercion. It must not be a
case in which a person has been induced by means such as I
have suggested to you, to come to a conclusion that he or she
will make a will in a particular person's favour, because if the
testator has only been persuaded or induced by considerations
which you may condemn, really and truly to intend to give his
property to another, though you may disapprove of the act, yet
it is strictly legitimate in the sense of its being legal. It is
only when the will of the person who becomes a testator is
coerced into doing that which he or she does not desire to do,
that it is undue influence. The coercion may, of course, be of
different kinds, it may be in the grossest form, such as actual
confinement or violence, or a person in the last days or hours of
life may have become so weak and feeble, that a very little
pressure will be sufficient to bring about the desired result, and
it may even be that the mere talking to him at that stage of
illness and pressing something upon him may so fatigue the
brain that the sick person may be induced for quietness' sake
to do anything. This would equally be coercion, though not
actual violence. These illustrations will sufficiently bring home
to your
minds that even very immoral considerations either on
the part of the testator, or of some one else offering them, do
not amount to undue influence, unless the testator is in such a
condition that, if he could speak his wishes to the last, he would
say,
"This is not my wish, but I must do it." If, therefore,
the act is shown to be the result of the wish and will of the
testator at the time, then, however it has been brought about-
for we are not dealing with a case of fraud-though you may
condemn the testator for having such a wish, though you may
condemn any person who has endeavoured to persuade, and has
succeeded in persuading the testator to adopt that view-still
it is not undue influence. There remains another general obser-
vation that I must make, and it is this, that it is not sufficient
to establish that a person has the power unduly to overbear the
will of the testator. It is necessary also to prove that in the
particular case that power was exercised, and that it was by
means of the exercise of that power that the will, such as it is,
has been produced "

CHAPTER III.

WILLS-continued.

Let us now proceed to consider the law with regard to (1) the execution of wills; (2) the incorporation of documents; (3) interlineations, alterations, &c., in wills; (4) the revocation of wills.

1. The Execution of Wills.

of wills.

The law with regard to the execution of a will, which has Execution been already to some extent considered (ante, p. 158, et seq.), is well illustrated by several cases which have recently come before the Court.

Robinson.

In a case which came before the President in 1886 (1). The Margary v. facts were as follows:-A testator, two days before his death, being paralysed on one side, and partly speechless, intimated to the two medical men in attendance on him his desire to make a will. They interpreted his wishes by signs, and wrote them down on a card. He executed the document by making his mark, which however appeared in the middle of the writing, and they then put their initials as witnesses at the back. The document which was propounded to the Court as a testamentary document was in the words and form following:

her for life and

after her to come

back to my family
and divided

fairly and equally."

It was written on a card on the reverse side of which the attesting witnesses had put their initials thus :

"Witnesses to Mark

:

P. E.

J. S.

Nov. 20, 1885."

() Margary v. Robinson, 12 P. D. 8.