Analysis of the Law of Will
When a person dies leaving their property, the question will definitely arise as to how his or her property or estate will be dealt by those who survived them. Intestacy rules applies when a person dies without leaving will but makes no provision for cohabitants and their children and friends. The law of wills are more favourable which allows a person to write a will that authorize their estate to be distributed according to their own wishes. Besides being able to specify own funeral arrangement and notify guardianship of the next kin, a will can also help to reduce the amount of Inheritance Tax that may be payable on the value of the property one leave behind. A will must be valid and can only run after the death of the testator or testatrix.
A testator must be over the age of 18 and have a necessary capacity, with capacity being defined as being of sound mind, memory and ‘understand the extent of the property of which he is disposing‘ to write a will. Thus a blind person cannot be a witness. Surprisingly in Wilson v Beddard, a 14 years old boy was given the importance of witnesses in the will-making process. It could be argued that no particular maturity of years is required to witness a signature but that undervalue the function of the witness. Borkowski in his opinion thinks that the requirement that witnesses to wills should be of adult age.
It is also important for testator to comply with the requirements under section 9 of the Wills Act 1837 in order to make a valid will. One advantage of this is formality of writing can prevents fraud. Over the time, courts have adopted a very broad approach towards this requirement. Wills written in bad Ukrainian have been accepted by the courts in Re Slavinskyj’s Estate case, will written on an eggshell or even in the code used by jeweller in the course of his business were accepted by the courts. The courts’ approach appears to accept anything that is a written manifestation of the testator’s intentions concerning the disposition of his or her estate on the death may be regarded as a will.
Second requirement being a will must be signed with an intention to give effect to the will. The courts have accepted any mark or marks intended to represent a signature in Re Savory (1851) case. In Re Stalman the will was written on a single piece of paper and the testatrix signed at the top of the paper. The Court of Appeal held that the signature was ineffective and the will invalid. The leading case, In the Goods of Chalcraft [1948] where the testatrix was extremely in pain and frail, she was given the will she drafted to sign, but could only able to complete E. Chal rather than E. Chalcraft before lapsing into unconsciousness and died. Willmer J. thought that Lord Campbell’s words should be given a broad interpretation and that, in the circumstances, the will was validly signed because ‘what she wrote was intended by her to be the best that she could for by way of writing her name’.
Contrast with a more uprightly flexible interpretation by Lord Campbell LC in Hindmarsh v Charlton (1861) stated that ‘there must either be the name or some mark which is intended to represent the name’. Although this was an understandable decision on the facts, the test applied by Willmer J. was not supported by other authority and is, in any case, open to the objection that it is too vague and imprecise. The judge attached essence to the fact that the testator complete his signature after the nurse left the room. His reasoning appears to have been that writing part of a name cannot amount to a signature where the testator goes on to complete the signature. The problem with this approach is that it imposes an unduly narrow meaning on signature by equating it with completed signature. These difficulties can be prevented by taking a wider approach of the meaning of a “mark” while focusing on the intention of the testator.
The requirement of presence is an important one as in section 9, which signature must wither be made or acknowledged in the presence of two witnesses and the witness must attest and sign or acknowledge his or her signature in the presence of the testator. The case of Brown v Skirrow [1902] demonstrates that the element of ‘presence’ means both mental and physical presence. As regards mental presence, the testator and the witnesses must be aware and mindful of the act done. Nevertheless, the cases on physical presence has raised the odd rule that it is sufficient if there was a line of sight at the relevant moment. For instance, it is sufficient for testator to see the witnesses signing, even if the testator did not look at what they were doing at that moment. There is obvious potential for fraud and undue influence in such a case although these possibilities may seem to contradict by the insistence on the testator’s ‘direction’, they cannot be depreciated.
The line of sight test cannot be critically defended. In Langbein seminal article, “Substantial Compliance with the Wills Act”, he argued that formalities had four main functions in will-making in which requiring the presence of the participants to the making of a will arguably serves all these purposes, especially the cautionary and the protective functions: it attracts attention to the importance of the matter and supply vital checks that the statutory requirements are being achieved.
Section 9(1) allows ‘some other person’ to sign on behalf of the testator providing this is done in the presence and by the direction of the testator. The main reason for this provision was to provide for the case of the illiterate testator, but the leading aim now must be to help the testator who cannot sign because of illness or disability although he must be at least capable of giving ‘direction’. As it is, there would appear to be nothing to invalidate a will signed by some other person on behalf of a perfectly fit testator. Borkowski suggested to amend the relevant part of section 9(1) to read ‘or by some other person in his presence and by his direction where the testator is unable to sign the will because of illness or disability’. Borkowski also argues that the number of witnesses should be increased. Two witnesses could easily be so intimately connected as to be able to collude in their evidence – as may be the situation with ‘the friendly couple next door’.
The failure to date a will will not make a will invalid as there is no statutory requirement for a will to be dated. Waite LJ stated in Corbett v Newey: ‘Lack of a date or the inclusion of the wrong date cannot invalidate a will’. However, dating a will convenience judges to decide issues concerning the testator’s capacity to produce a will. Besides, interpretation of a will such as references to persons and property can depend on the date of execution. Moreover, testator might leave more than one will thus the date of the will will be used to determine the order of execution.
On 22 January 2014, the Supreme Court handed down its decision in the case of Marley v Rawlings. One of the issue arise is rectifying a will under section 20 of the Administration of Justice Act 1982 which was introduced on the recommendations of the Law Reform Committee. Under this provision, a will is rectifiable but in Marley case, the respondents argues that the physical mix-up of the documents meant that Mr Rawling had not signed ‘a will’ for the purpose of section 20. Since section 9 of the Wills Act require a will to be signed in order to be valid, it was argued that this will had not being signed by the testator and therefore no intention to give effect to the said provisions. As Lord Neuberger PSC said, it is logical “to deal with the validity and rectification issues together, at least in a case such as this, where the two issues are so closely related”.
In conclusion, the law of will should be reformed to make a clearer and distinct rules as they are used by majority and for vital task such as wealth distribution upon death. Good news is that the Law Commission announced on 23 July 2014 that it expects to start its project on the reform of the law of wills in early 2015 with a view to publishing a report with final recommendations and a draft Bill in early 2018. Borkowski’s recommendations for section 9 of the 1837 act would probably results in more failure in will, prima facie, but would also save some application of a dispensing power. However, it is obvious that the Parliament is putting efforts in improving the law of will.
Administration of Estates Act 1925, s 46
Wills Act 1837, s 7
Sir Alexander Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at p.564
Re Gibson [1949] P. 434
Wilson v Beddard (1841) 12 Sim. 28, 59 E.R. 1041
Andrew Borkowski, Reforming section 9 of the Wills Act (Conveyancer and Property Lawyer 2000)
Wills Act 1837, s 9
Re Slavinskyj’s Estate [1989] 53 SASR 221
Hodson v Barnes (1926) 43 TLR 71
Kell v Charmer (1856) 23 BEAV. 196
Catrin Fflur Huws, Text, Cases and Materials on Equity and Trusts (1st edn Pearson 2015) p.369
Re Savory (1851) 15 Jur 1042
Re Stalman (1931) 145 LT 339
In the Goods of Chalcraft [1948] 1 All ER 703
(1861) 8 HL Cas. 160, 167
Andrew Borkowski, Reforming section 9 of the Wills Act (Conveyancer and Property Lawyer 2000)
[1902] P 3
John Harriss Langbein, Substantial Compliance with the Wills Act (88 Harvard Law Review 489, 1975)
Wills Act 1837, s 9(1)
Andrew Borkowski, Reforming section 9 of the Wills Act (Conveyancer and Property Lawyer 2000)
ibid
Corbett v Newey [1996] 2 All E.R. 914
Waite LJ in Corbett v Newey [1996] 2 All E.R. 914 at p.920
Re Whorwood (1887) 34 Ch D 446
[2014] UKSC 2
Administration of Justice Act 1982, s 20
Law Reform Committee, Interpretation of Wills 19th Report (HMSO, 1973). Cmnd.5301
Wills Act 1837, s 9
Marley v Rawlings [2014] UKSC 2; [2014] 2 W.L.R. 213 at p63
Law Commission, ‘Wills: Current Project Status’ <> accessed on 5 March 2017