CHAPTER VII. OF WILLS. THE subject for our consideration in this, our final chapter, is a Will of Land. In the previous chapters of this part of our work we have gone through the clauses of a simple form of the particular instrument under discussion, in order to show how the practical work of conveyancing is made to comply with the rules of law. But when we come to the subject of wills it is not possible for us to adopt our usual plan. All the other instruments to which our attention has hitherto been directed, however much they may vary in detail, have some parts common to the class to which they belong. The covenants in a mortgage deed, the lessee's covenants in a lease, the limitations in a strict settlement, vary only within moderate limits; and the observation, therefore, of any one set of them serves as a guide in framing all other assurances of a like nature. But with wills the case is different. There may be, and often is, a similarity between one will and another. The conveyancer may be able to lay his finger upon this and that form, and say that they ought, respectively, to be made use of in certain cases, but he cannot say of any of the important parts of any one will that they are matters of common form. We will, therefore, after a few words on the qualifications necessary to enable a person to make a will, arrange our subject under three headings, namely:— Ist, the execution and attestation of wills; 2nd, the Proposed estates and interests in land which can be disposed of division of the subject. Who may make a will. Infants may of real pro perty. by will; and 3rd, the revocation of wills; the first and third of these divisions applying to all wills equally. The principal rules which govern the making of wills at the present day are to be found in the 7 Wm. The Wills Act. IV., and 1 Vict., c. 26 (generally known as the Wills Act), which applies to all wills made in England and Wales, or Ireland, since the 31st of December 1837. The Act first says that it shall be lawful for every person (a) to make a will, and subsequently excepts two classes from this general rule. These are, persons not make a will under the age of twenty-one years (b), and married women, except in so far as they might have made a will before the passing of the Act (c). To the incapacity of an infant to make a will of real property (an Exception as to exception to his general incapacity being made, by personal property. another section (d) of the Act, with regard to a will of personalty by a soldier or sailor who is an infant (e) ) we may add that of persons who cannot make a will on account of natural or temporal incapacity, such as idiots, lunatics, those who from old age or other causes have outlived their understanding, or who are subject to undue influence, and of persons who are disabled by statute (f) on account of their being sentenced to death, or undergoing penal servitude, for any crime. Wills of married Women. Married women, it will be noticed, are under the same disability as before the Act (g). By an old statute of Henry the Eighth relating to wills (h), but repealed by the present Wills Act (¿), it was enacted (j) that no will made of any lands, manors, or other here (a) S. 3. (d) S. 11. (e) Re McMurdo, L. R. 1 P. & M. 540. (f) 33 & 34 Vict. c. 23. (g) See Thomas v. Jones, 2 J. & H. 475, 483. (h) 34 & 35 Hen. VIII. c. 5. (i) 7 Wm. IV. & 1 Vict. c. 26, s. 2. (j) S. 14. ditaments, by any married woman, should be effectual. A married woman is, therefore, unable to make a will of freeholds or copyholds, not belonging to her for her separate use, except in execution of a power of appointment; which must, moreover, in the case of copyholds, have been created by a surrender in her favour (k). But if the power exists, it is no objection to her exercise of it that she has thereby a dominion over land, and is not merely an agent carrying out the wishes of the person who created the power (1). She may dispose by will of her estate or interest in any land which has been settled to her separate use (m), or to which she has become entitled for her separate use under the provisions of the Divorce Acts (n), or of the Married Women's Property Acts (0); since in respect of these she is considered a feme sole, the statute of Henry the Eighth being held not to apply to land settled to a married woman's separate use, inasmuch as this form of property did not exist at the time when the Act was passed. She may also dispose by will of leaseholds, although not held to her separate use, provided her husband gives his consent to her doing so by some specified will (p), does not die during the coverture (for this operates as a revocation of his assent (g)), and, if he survives her, either expressly repeats his assent (?), or does not revoke it before her will is proved (s). We next come to the execution and attestation of Execution and attestation of wills. Before the passing of the Wills Act, a will of wills. personal estate might, under certain circumstances, be made by parol, and if in writing did not require any (k) Doe v. Bartle, 5 B. & Ald. 492, Sug. Wills, 9. (1) Sug. Pow. 153. (m) Taylor v. Meads, 13 W. R. 394. (n) 20 & 21 Vict. c. 85, ss. 21, 25; 21 & 22 Vict. c. 108; re Elliott, L. R. 2 P. & M. 274. (0) 33 & 34 Vict. c. 93: 45 & 46 Vict. c. 75. (p) R. v. Bettesworth, Str. 891. (q) Noble v. Willock, L. R. 8 Ch. 778. (r) Maas v. Sheffield, 1 Rob. 364. (8) I Wms. Exors. 55. Will need not, necessarily, be in ink. attestation. A will of real estate, on the other hand, was invalid unless attested by three witnesses. The present Act has established a uniform rule for the execution of every kind of will. It enacts (t) that no will (a term which includes a codicil to a will) shall be valid unless it shall be in writing and executed in the manner thereinafter mentioned; (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. It is further enacted (u) that no appointment made by will in exercise of any power shall be valid, unless the same be executed in the manner required by the Act for the execution of wills and that every will so executed shall, so far as regards the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. The writing of a will need not, necessarily, be in ink pencil writing will be sufficient, although objectionable both on account of its liability to obliteration, and because where a will is partly in ink and partly in pencil, the words in pencil may be rejected if the will is sensible without them (v). The will may consist also, in part, of a printed form filled up in writing, or may even be in numbers and letters (w) explained by a key, but the first-mentioned form of will may give rise to difficulties in probate (x), whilst the disadvantages of the second are obvious. If the will is in writing, nothing inserted in it by the testator before its execution can be altered after his death. In a modern case (y), the residuary clause of a will was in the following terms:-"The trustees to stand possessed of all the residue of my real estate in trust," &c. It was proved, conclusively, that the testator had intended to include his personal estate in this clause, and the Court of Probate was asked to carry out his wishes by striking out the word "real," but the judge (Sir J. Hannen) refused to do so, holding that, in the absence of fraud or mistake made without the knowledge of the testator, the Court has no jurisdiction to correct any error which may have crept into a will. With respect to changes made in a will after its execution the case is different, for the Act says (2) that 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 and attested in the same manner as a will. But it is provided that such alteration shall be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin of the will near such alteration, or near a memorandum referring to such alteration, and written in some part of the will. If, therefore, there is an unattested alteration in a will, and the will is intelligible without such alteration, the latter will be struck out of the will unless it can be proved to have been made before the will was executed. It has been said that there is no presumption of law that an alteration was made at any particular time, but that the onus of (x) See 2 Rob. 115n; Re Dilkes, L. R. 3 P. & M. 164. (z) S. 21. |