« EelmineJätka »
such child or children as shall have any land by settlement from the intestate or were advanced in the lifetime of the intestate as shall make the estate of all the said children to be equal as near as can be estimated But the heir at law notwithstanding any land that he shall have by Heir at law descent or otherwise from the intestate is to have an equal part in the quant distribution with the rest of the children without any consideration of the value of the land which he hath by descent or otherwise from the intestate.
then one moiety to
30. And in case there be no children nor any legal representatives of If no children them then one moiety of the said estate to be allotted to the wife of the intestate* the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree and those who legally represent them.
wife and next of kin.
22 & 23 Car. 2 c. 10 s. 6.
31. Provided that there be no representations admitted among If no wife then collaterals after brothers' and sisters' children.
distributed And in case there be no wife then all the said estate to be distri- amongst the buted equally to and amongst the children and in case there be no child 22 & 23 Car. 2 then to the next of kindred in equal degree of or unto the intestate and c. 10 s. 7. their legal representatives as aforesaid and in no other manner whatsoever.†
32. Provided also to the end that a due regard be had to creditors No distribution that no such distribution of the goods of any person dying intestate be till after one made till after one year be fully expired after the intestate's death and 22 & 23 Car. 2 that such and every one to whom any distribution and share shall be c. 10 s. 8. allotted shall give bond with sufficient sureties in the Supreme Court that if any debt or debts truly owing by the intestate shall be afterwards sued If debts for and recovered or otherwise duly made to appear that then and in every such case he or she shall respectively refund and pay back to the all to refund administrator his or her rateable part of that debt or debts and of the proportionally. costs of suit and charges of the administrator by reason of such debt out of the part and share so as aforesaid allotted to him or her thereby to enable the said administrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid.
33. Provided also that in all cases where the Supreme Court hath This Act shall used heretofore to grant administration cum testamento annexo it shall not extend to continue so to do and the will of the deceased in such testament expressed shall be performed and observed.
22 & 23 Car. 2 c. 10 s. 9.
deemed to be
34. When any person shall die having by his or her will or any codicil or codicils thereto appointed any person or persons to be his or her trustees for executor or executors such executor or executors shall be deemed by persons courts of equity to be a trustee or trustees for the person or persons any residue (if any) who would be entitled to the estate under the statute of distri- under the butions in respect of any residue not expressly disposed of unless it shall distributions appear by the will or any codicil thereto the person or persons so otherwise appointed executor or executors was or were intended to take such directed by residue beneficially.
11 Geo. IV. &
35. Provided that nothing in the section last preceding contained Not to affect shall affect or prejudice any right to which any executor if this Act had rights of not been passed would have been entitled in cases where there is not any
But see the Amendment Act of 1895, infra.
is no person entitled to the residue.
+ As to share of intestate's mother, see "The Succession Act Declaratory Act of 1884," 11 Geo. IV. & infra, this title.
1 Wm. IV. c. 40
All property may be disposed
of by will comprising freeholds also such of them
as cannot now be devised.
Estates pur autre vie.
1 Vic. c. 26 s. 3.
No will of a minor valid.
7 Wm. IV. &
1 Vic. c. 26 s. 7.
Nor of a
as might now
1 Vic. c. 26 s. 8.
Every will to
presence of two
1 Vic. c. 26 s. 9.
15 & 16 Vic.
person who would be entitled to the testator's estate under the present or any statute of distributions in respect of any residue not expressly disposed of.
36. It shall be lawful for every person to devise bequeath or dispose of by his will executed in manner hereinafter required all real estate and all personal estate which he shall be entitled to either at law or in equity at the time of his death and which if not so devised bequeathed or disposed of would devolve upon the heir-at-law of him or if he became entitled by descent of his ancestor or upon his executor or administrator and also all estates pur autre vie whether there shall or shall not be any special occupant thereof and whether the same shall be freehold or of any other tenure and whether the same shall be a corporeal or incorporeal hereditament and also all contingent executory or other future interests in any real or personal estate whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will and also all rights of entry for conditions broken and other rights of entry and also such of the same estates interests and rights respectively and other real and personal estate as the testator may be entitled to at the time of his death notwithstanding that he may become entitled to the same subsequently to the execution of his will.
Competency of Testators.
37. No will made by any person under the age of twenty-one years shall be valid.
38.* Provided also 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 this Act.
Execution and Attestation of Wills and Powers.†
39. No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary.
40. Every such will shall so far only as regards the position of the signature of the testator or of the person signing for him as aforesaid be deemed to be valid if the signature shall be so placed at or after or following or under or beside or opposite to the end of the will that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will
and no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature or by the circumstance that the signature shall be placed among the words of the testimonium
* As to wills of realty by a married woman, see "The Intestacy Act of 1877," s. 52, infra, this title.
As to attestation clause being prima facie evidence of due execution of will, see "The Rules of the Supreme Court of 1900," Order LXXI. r. 13, title Practice.
clause or of the clause of attestation or shall follow or be after or under the clause of attestation either with or without a blank space intervening or shall follow or be after or under or beside the names or one of the names of the subscribing witnesses or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature
and the enumeration of the above circumstances shall not restrict the generality of the above enactment but no signature under this Act shall be operative to give effect to any disposition or direction which is underneath or which follows it nor shall it give effect to any disposition or direction inserted after the signature shall be made.
Act to extend
41. The provisions of the section last preceding shall extend and be applied to every will already made where administration or probate has to certain wills already not already been granted or ordered in consequence of the defective exe- made. cution of such will or where the property being other than personalty has not been possessed or enjoyed by some person claiming to be entitled thereto in consequence of the defective execution of such will or the right thereto shall not have been decided to be in some other person than the person claiming under the will in consequence of the defective execution of such will.
7 Wm. IV. &
42. No appointment made by will in exercise of any power shall be Appointments valid unless the same be executed in manner herein before required and by will to be every will executed in manner herein before required shall so far as other wills &c. respects the execution and attestation thereof be a valid execution of a 1 Vic. c. 26 power of appointment by will notwithstanding it shall have been ex- s. 10. pressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity.
43. Provided always that any soldier being in actual military service Soldiers' and or any mariner or seaman being at sea may dispose of his personal estate mariners' wills as he might have done before the making of this Act.
7 Wm. IV. & 1 Vic. c. 26
Act not to
11 Geo. IV. &
c. 20 with
44. This Act shall not prejudice or affect any of the provisions contained in an Act passed in the eleventh year of the reign of His Majesty affect King George the Fourth and the first year of the reign of His late provisions of Majesty King William the Fourth intituled "An Act to Amend and Con- 1 Wm. IV. solidate the Laws relating to the Pay of the Royal Navy respecting the respect to wills of petty officers and seamen in the Royal Navy and non-commis- wills of petty sioned officers of marines and marines so far as relates to their wages 7 Wm. IV. & pay prize money bounty money and allowances or other moneys payable 1 Vic. c. 26 in respect of services in Her Majesty's Navy.
45. Every will executed in manner hereinbefore required shall be valid without any other publication thereof.
Competency of Attesting Witnesses.
46. If any person who shall attest the execution of a will shall at the time of the execution thereof 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.
* Repealed by The Naval Discipline Act, 1866 (29 & 30 Vict. c. 109), s. 85.
7 Wm. IV. & 1 Vic. c. 26
Gifts to an
7 Wm. IV. &
47. If any person 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 legacy estate interest gift or appointment shall so far only as concerns such person 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 devise legacy estate interest gift or appointment mentioned in such will.
48. In case by any will any real or personal estate shall be charged attesting to be 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 notwithstanding such charge shall be admitted a witness to prove the execution of such will or to prove the validity or invalidity thereof.
7 Wm. IV. &
1 Vic. c. 26 $. 16.
Executor to be admitted a
7 Wm. IV. &
1 Vic. c. 26 s. 17.
49. 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.
Will to be
7 Wm. IV. &
No will to be
7 Wm. IV. &
In what cases
7 Wm. IV. &
in a will shall have any effect unless executed as a will.
7 Wm. IV. & 1 Vio. o. 26 8. 21.
Revocation and Alteration.
50. Every will made by a man or woman shall be revoked by his or her marriage except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir executor or administrator or the person entitled as his or her next of kin under any statute of distribution.
51. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.
52. No will or codicil or any part thereof shall be revoked otherwise than as aforesaid or by another will or codicil executed in manner hereinbefore required or by some writing declaring an intention to revoke the same and executed in the manner in which a will is herein before 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.
53. No obliteration interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent unless such alteration shall be executed in like manner as hereinbefore 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 the margin or on some other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the will.
54. No will or codicil or any part thereof which shall be in any How revoked manner revoked shall be revived otherwise than by the re-execution will shall be thereof or by a codicil executed in manner hereinbefore required and 7 Wm. IV. & showing an intention to revive the same and when any will or codicil 1 Vic. c. 26 which shall be partly revoked and afterwards wholly revoked shall be revived such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof unless an intention to the contrary shall be shown.
Construing of Wills.
55. No conveyance or other act made or done subsequently to the When a devise execution of a will of or relating to any real or personal estate therein not to be comprised except an act by which such will shall be revoked as aforesaid inoperative &c. shall prevent the operation of the will with respect to such estate or 1 Vic. c. 26 interest in such real or personal estate as the testator shall have power s. 23. to dispose of by will at the time of his death.
56.* 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 shall appear by the will.
7 Wm. IV. &
A will to speak
from the death
of the testator. 7 Wm. IV. &
1 Vic. c. 26 s. 24.
1 Vic. c. 26
57. Unless a contrary intention shall appear by the will such real What a estate or interest therein as shall be comprised or intended to be com- shall include. prised in any devise in such will contained which shall fail or be void by 7 Wm. IV. & reason of the death of the devisee in the lifetime of the testator or by reason of such devise being contrary to law or otherwise incapable of taking effect shall be included in the residuary devise (if any) contained in such will.
7 Wm. IV. &
1 Vic. c. 26 8. 26.
58. A devise of the land of the testator or of the land of the testator What a general in any place or in the occupation of any person mentioned in his will or include. otherwise described in a general manner and any other general devise which would describe a leasehold estate if the testator had no freehold estate which could be described by it shall be construed to include the leasehold estates of the testator or his leasehold estates or any of them to which such description shall extend (as the case may be) as well as freehold estates unless a contrary intention shall appear by the will.
59. A general devise of the real estate of the testator or of the real what a generab estate of the testator in any place or in the occupation of any person gift shall mentioned in his will or otherwise described in a general manner shall be 7 Wm. IV. & construed to include any real estate or any real estate to which such 1 Vic. c. 26 description shall extend (as the case may be) which he may have power to appoint in any manner he may think proper and shall operate as an execution of such power unless a contrary intention shall appear by the will and in like manner a bequest of the personal estate of the testator or any bequest of personal property described in a general manner shall be construed to include any personal estate or any personal estate to which such description shall extend (as the case may be) which he may have power to appoint in any manner he may think proper and shall operate as an execution of such power unless a contrary intention shall appear by the will.
Section 56 applied to the will of a married woman by Act, 1890 (61 Vic. No. 2), s. 3, title Marriage and Divorce.
"The Married Women's Property