FORMALITIES

- Generally a will is a document in writing by which the person making it provides for the distribution or
administration of property after his/her death. It also revokes previous wills.
- A will is ambulatory i.e. it has no effect until the T dies and therefore cannot confer benefits whilst the T is alive.
- It must be executed with certain formalities which are prescribed by Wills Act 1979
- A codicil is a testamentary document made subsequent to a will which may confirm, add to, vary or revoke the
will. S2 of the Wills Act states that will extends to codicil.
- A codicil is executed with the same formalities as a will.

S6. Wills Act

Execution of Wills
- Shall be in writing1
- Signed at foot or end by T/other person in his presence and by his direction
- Such signature must be made/acknowledge by T in joint presence of 2/more W present at same time
- Such W shall attest & subscribe will in presence of T
- No attestation clause necessary
- All wills except privileged wills must be validly executed in the above manner

Position of Ts signature/other person signing for him is valid if signature is

- So placed at, after, following, under, beside, or opposite to the end of will,
- That it is apparent on the face of the will that T intended to give effect by such signature to the writing signed as
his will.
- Validity of will shall not be affected if:
o Signature doesnt follow or is immediately after the foot/end of will;
o A blank space exists bw concluding word of will and the signature;
o Signature placed among words of the testimonium or attestation clause;
o Signature follow, is after, under or beside the name(s) of subscribing W;
o Signature is on a side, page or other portion of paper(s) containing will where no clause/ paragraph/
disposing part of will is written above the signature;
o There appears to be sufficient space to contain signature on/at bottom of the preceding side/ page/
other portion of same paper which will is written on.
- BUT signature will not give effect to any disposition/direction that:
o Is underneath or follows it; or
o Inserted after signature made.

Signature Discussed
- Will must be signed by T or someone in his presence and by his direction.
- T may sign will by making some mark intended by him to be his signature instead of his name such as by
o a stamp bearing his signature;
o his initials;
o an X; and
o an ink-smudged thumb: Re Finn 1935
Incomplete
- An incomplete signature due to loss of consciousness was held to be good as it was the best that could be done
in the circumstances: Re Chalcrafts Goods 1948
- However, in Re Colling 1972 the court held that a will may be invalid, if a witness leaves b4 the T completes his
signature, even if he acknowledges the signature before the witness attests it.

1
Kell v Charmer & S3 Interpretation Act, writing: includes printing, lithography, typewriting, photography and other modes of
representing and reproducing words or figures in visible form.
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 o C, while a patient in hospital, started to sign his will in the presence of a nurse and another patient.
o Before he had completed his signature the nurse left to attend to a patient elsewhere in the ward.
o During her absence C completed his signature and the other patient signed as witness.
o On nurses return they acknowledged their signatures to her and she signed as a witness.
o In an action by the E to determine whether Cs signature complied with Wills Act,
o Held: that part of Cs name which was subscribed before the nurse left was not his signature nor was it
intended to represent the name and so it did not comply with Wills Act.
o Chalcraft was distinguished.
Erroneous/Assumed Name Signed
- An erroneous/assumed name is good if:
o It is intended to be Ts name/ a description which sufficiently identifies him; and
o It is intended to represent his name
- In In the Estate of Cook 1960 the T wrote your loving mother instead of her usual signature and the court
accepted this as a valid signature.
Other person signs for T
- Where a person signs for a T in his presence and by his direction he may either sign the Ts name or his own
name: In Re Clark 1839.
- An attesting witness may sign for T but the attestation clause should show that the will was signed by another
person, signing his name or the Ts, by Ts direction and in his presence and that the will was read over to him
and he appeared to fully understand the same: Re Bailey.

Position of Signature Discussed

- The Wills Act requires signature to be at the end or foot of the will but this has been interpreted liberally. See
above s6 Wills Act for position.
Dispositions/Directions after Signature
- No signature is operative to give effect to any disposition which is underneath or follows it or any
disposition/direction inserted after the signature.
- Words physically beneath or following the signature may, however, be construed to be above it either bc of the
manner of writing, the use of asterisks or other signs of interpolation:
- In the Goods of Birt 1871:
o Deceased in his will, which was written by himself on the first side of a half-sheet of paper, gave his
property to his wife for life, and then, intending to dispose of certain freehold cottages on the death of
his wife, commenced a sentence which he left incomplete.
o After the incomplete sentence was an asterisk, and the words see over,
o The will, which covered the whole of the first side, was executed at the bottom of that side, and at the
top of the second side was another asterisk, and a devise of the cottages to his daughter. This bequest
was written before the will was executed.
o Held: that the words on the second side were in the nature of an interlineations, and formed part of the
will.
- Palin v Poting 1930
o On the margin of the first page of a will on a printed form, duly executed and attested at the foot of the
page, occurred the words, See other side for completion.
o On the second page under the words Continuation from the other side, there were dispositions of
property and a residuary gift without any further execution or attestation:-
o Held: that the words see the other side for completion had the effect of joining in or interlining the
writing on the second page and that the unexecuted writing should be included in the probate.
Several Sheets comprising Will
- Where several sheets comprise a will, it is not necessary to sign all the sheets, but at the time of execution all
sheets must be attached in some way though not necessarily mechanically, for example:
- By being pressed together on a table by the T: Re Little, Foster v Cooper 1960:
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 o A draft will consisting of 4 sheets of paper and a back sheet, all stapled together, were sent to the
deceased by his solicitor.
o The evidence as to attestation was that on Nov 21, 1957, the deceased placed a number of apparently
unattached sheets of paper on a table with the reverse of the back sheet on the top, wrote his name
some eight inches down the page and caused the attesting witnesses to sign beneath.
o On the death of the deceased the will was retrieved fr a deposit in a bank stapled together in the order
in which it had been dispatched from the solicitor but containing on the upper half of the back sheet
above the signatures, a disposition of certain specific chattels to the daughter of the deceased.
o The word draft on the face of the back sheet preceding the word will had been struck out.
o On an action by the E praying that the will be admitted to probate which was defended on the ground of
lack of due execution:-
o Held: that even if there were no mechanical attachment of the separate sheets of the will at the time of
the execution the pressing of the sheets together by the deceased constituted a sufficient nexus to
produce a single testamentary document. Lewis v Lewis applied.
o The fact that at the time of the execution, a blank space intervened between the body of the will and
the signature of the deceased did not, in itself, render the will invalid and in all the circumstances of the
case, the intention of the deceased at that time was to give effect to the document as a testamentary
disposition immediately and not after the adding of the provision disposing of the specific chattels;
o That disposition was therefore of no effect and the will in the form in which it was in November 21,
1957, was duly executed and must be admitted to probate.
- Held together by the Ts thumb and finger: Lewis v Lewis 1908:
o If it be clearly established by parol evidence that the pieces of paper propounded as a will were held
together in some way or were so produced to the attesting witnesses and acknowledged by the T as his
will, and his signature thereon was shown to them and declared by the T to be his signature,
o The attestation of the document by the attesting witnesses in the presence of the T renders it a duly
executed will and entitled it to probate, although the pieces of were not attached by any mechanical
fastening.

Acknowledgment of Signature Discussed

- Ts signature must be made or acknowledged by him in presence of 2 or more witnesses present at the same
time and such witnesses must subscribe the will in his presence also.
- Acknowledgement involves the doing of any act or speaking of any words by the T which indicates that the
signature is his: Daintree & Butcher v Fasulo 1888
o A T exhibited a codicil to her last will, which was entirely in her own handwriting, to one of the attesting
witnesses, telling her she had something which required 2 witnesses.
o Subsequently, the 2nd attesting witness having come into the room was asked, either by the T or by the
other attesting witness in her presence, to sign it, and they both signed, but the T did not tell them that
it was a testamentary paper, nor did they know what sort of paper it was that they had attested.
o They did not recollect seeing the T sign, but one of them was clear that her signature was there at the
time they signed:-
o Held: affirming the decision of Butt J, that this was a sufficient acknowledgment by the T of her
signature, and that the codicil was entitled to probate.
- Cf Re Groffman 1969:
o In summer of 1964 T had a will prepared for him by his solicitors. One September evening 1964, the T his
wife and 4 of their friends met the house of one of them (Mr. and Mrs. B)
o During the evening the T said to Mr. B and Mr. L that he would like them to witness his will, at the same
time gesturing towards his coat pocket where the folded will was.
o A there was no convenient space in the lounge, where they were Mr. B, led the T to the adjacent dining
room, Mr. L remaining in the lounge.
o The T removed the will from his pocket revealing his signature thereon and Mr. B signed it.
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 o Mr. B then returned to the lounge and sent Mr. L to the dining room, where he signed the will beneath
Mr. Bs signature.
o The T died in April 1967 and the plaintiffs the executors of the will, sought to propound it and but the
defendant, Ts widow, claimed that the will had not been properly executed:-
o Held: that there could be no proper acknowledgment within s9 of the Wills Act, unless at the time of
acknowledgment the attesting witnesses either saw or were capable of seeing a will upon which there
was a signature;
o That, on the facts, none of those conditions had been satisfied and that accordingly the will had not
been validly executed and would be pronounced against. Daintree applied.
Witnesses need not know contents of will
- T need not inform the witnesses of the nature of the document or its contents since it is his signature, not the
will, which is being acknowledged: Keigwin v Keigwin 1834
- *The T must be present when the witnesses attest but the witnesses need not attest in each others presence
although this is usually done.

Presence Discussed
- Not necessary that T actually sees the witnesses sign, nor need they see him sign.
- It is good enough if the person in whose presence the signature is made could have seen the signing if he wished
to do so.
- It is not sufficient if a witness is present in the same room but is not aware that the T is writing: Brown v Skirrow
1902
o Where a T signed her will in a shop, and 1 witness, who saw her sign, attested it, but the other witness
being at the time when T and 1st witness signed engaged at the other side of the shop with a person who
stood between him and the T, did not see them sign and did not know nor have the opportunity of
knowing anything about what they had engaged upon until after they had signed, when he was asked to
be a witness:-
o Held: that the T did not sign in the presence of the 2nd witness.
- or if a witness leaves before the T completes his signature: Re Colling 1972-See above.

Attestation Clause Discussed

- This is desirable but not essential.
- The presence of an attesting clause raises a stronger presumption that the will was duly executed than if the will
contained no such clause.
- This is useful where the witnesses are dead or where a witness memory is lacking: Re Webb 1964:
o Here, the attestation clause proved useful.
o Where the original will is destroyed without animus revocandi and the witnesses do not recall its
execution, the execution can be deduced from a proper attestation clause in a draft of the will on the
principle omnia praesumuntur rite esse acta.
o A Ts will could not be found, but its disappearance was accounted for so that it was not presumed to
have been destroyed animo revocando and a draft of the will was found.
o A witness named in the draft which contained a due attestation clause, was called but could give no
evidence of due execution.
o Held: that the draft should be admitted to probate as in the absence of cogent contrary evidence the
form of the clause raised a presumption of due execution.
o Sugden v Lord St Leanards 1875-76 and Re Phibbs 1917 applied.

Gifts to Witnesses
s10. Gift to Attesting Witness to be void
- Where attesting witness or their spouse given any benefit under will he attests, such benefit as it concerns the
attesting witness, their spouse or any other person claiming under them is null and void.
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 - Notwithstanding benefit conferred on attesting witness, s/he shall be admitted as a witness
o to prove execution of will; or
o validity/invalidity thereof
Discussion
- Any gift in a will of a beneficial interest to a witness or to a witness spouse is void.
- The witness is h/w a good witness.
- A gift to a witness merely as a trustee is good: Re Rays Will Trust v Barry 1936:
o A T, who was a nun in a convent, by her will gave all her property to the person who at the time of her
death should be or should act as abbess of the convent.
o The will was attested by two nuns belonging to the convent, one of whom was subsequently elected
abbess and held that office at the time of the Ts death:-
o Held: that the will did not create a beneficial legacy or gift to the abbess personally, but that the gift was
one in trust for, and as an addition to the funds of the community, and was not invalidated, under s15 of
Wills Act 1937, by the attestation of the will by the witness who afterwards became abbess.

Superfluous Attestation
- S6 above says 2 or more persons required to attest Ts signature.
- Where more than 2 persons sign, the presumption is that they do so as witnesses so the gifts to them are void,
but if after the execution another person adds his name the court will not without cogent evidence conclude
that he signed as witness.
- The presumption that any person (except T) whose signature appears at end of will signed as an attesting
witness can be rebutted. The court may order that such signature be omitted from probate: In the Goods of
Sharma 1869:
o The deceased made a will in favor of one person only, and after bequeathing to her certain specified
articles of property, he added, and all other chattels; these last words were held to cover the general
residue.
o Held: Where a will has been executed in the presence of 2 witnesses, and in addition to their signatures,
the signature of a 3rd person, who is also a residuary legatee appears at the foot of the will, the court will
receive evidence to explain why such signature was written, and if it be satisfied that it was not written
with the intention to attest the signature of the deceased, it will order it to be omitted in the probate.
- Cf with Bravda- DOESNT APPLY to us.

Mental Capacity
- To make a valid will a T must:
o Have testamentary capacity i.e. mental capacity to make will
o Must know and approve of the contents of the will; and
o Must not have made it as the result of the undue influence or fraud of another person.
- Note that the Wills Act doesnt provide that mental capacity is necessary but it is the common law that does.
- The T must have attained the age of 18 years and complied with all the statutory formalities for making a will
except in case of privileged wills.
Testamentary Capacity
- T must have a sound mind, memory and understanding: Banks v Goodfellow 1870. T must understand the:
o nature of the act and its effects
o The extent of property hes disposing
o Comprehend and appreciate the claims he ought to give effect:
No disorder of the mind should poison his affects, pervert his sense of right or pervert the
exercise of his natural faculties.
No insane delusion should influence his wil,l in disposing of the property and bring about a
disposal of it, which, if the mind had been sound he would not have made.
- The capacity to make a will may also be affected by drugs, drink, illiteracy, blindness and old age and infirmity.
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 - Where T is elderly/seriously ill or it is anticipated that the will may be challenged on the ground of lack of TC, it is
prudent to arrange for the T to be examined by a medical practitioner, who if satisfied as to his mental capacity,
may attest the will: Re Simpson 1977.
-
Delusion
- A delusion which influences or is capable of influencing the provision of Ts will deprives him of testamentary
capacity.
- A delusion is the belief in the existence of something which no rational person could believe and which cannot e
eradicated from the Ts mind by reasoning with him: Dew v Clark.
- If a delusion doesnt have any influence on him in the making of his will, then the delusion doesnt deprive him
of testamentary capacity.
- Usually there is an indication on the face of the will that the T is affected by an insane delusion- this may have to
be proved by extrinsic evidence.

Burden of proof
- It is for person propounding the will to satisfy court that the will is valid and that the requisite mental capacity
was present when the will was made: Barry v Butlin.
- If will rational on its face the person attacking it will have to prove lack of mental capacity: Dew v Clark.
- If a will is irrational on its face there is a presumption that the T lacked mental capacity and the person
propounding it must satisfy the court of the Ts mental capacity.

Lucid Interval
- Will may be made during a lucid interval.
- Length of time of the interval can range from for instance one hour, or a day: Yatman case:
o Probate of will granted although the will was made during a lucid interval one day and insanity had
caused the T to commit suicide the next day.

Parker v Felgate 1883 Rule

- Even though the T doesnt have the requisite at the time he executes the will, it will still be valid if the T has TC
at the time when he gives instructions (usually to his lawyers) for the preparation of his will provided:
o The will is prepared in accordance with his instructions; and
o At the time of the execution he understands that he is executing a will for which he had given
instructions.
- Useful rule in saving wills when Ts condition has deteriorated after he has given instructions.
- It is a rule liable to abuse however and PC in Battan Singh v Amirchand 1948 stated that in applying the rule the
court should be strictly satisfied that there is not ground for suspicion esp where T gives instructions to an
intermediary who reports them to the lawyer.

Knowledge & Approval

- T must know and approve of the contents of the will but he need not know its legal effect.
- Person propounding will must prove that T knew and approved wills contents at the time of execution.
- But where T had TC and he executed his will in normal circumstances there is a rebuttable presumption that he
knew and approved of its contents.
-
**T is Blind/Illiterate
- Where T is blind or illiterate there is a burden of proof on the person propounding the will to show that the T
understood its contents.
- This may be done by showing that will was read over to T prior to execution and that he appeared to understand
and approve its contents: Rule 40, Jamaican General Rules & Orders of the Supreme Court, Part III Probate &
Administration, Non-Contentious Business.
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 - Liberal approach of court in Christian v Intsiful 1954-PC WA
o By the Courts Ordinance c4Where the T was blind or illiterate, the court shall not grant probate of the
will, or administration with the will annexed, unless the court is first satisfied, by proof or by what
appears on the face of the will, that the will was read over to the deceased before its execution, or that
he had at that time knowledge of its contents.
o The Ts eyesight was impaired, and it was shown that the will had not been read over to him before its
execution.
o Held: if it could have been shown-as was not the case- that the T was incapable of reading in, that would
have been sufficient proof of blindness for the purposes of the ordinance, but , even supposing the T
had been blind, the fact that the will was an elaborate one, leaving to a large number of parties,
relations and friends of the deceased, various sums of money, and that it was not a document which
one who was not intimately acquainted with the Ts life could possibly have devised, entitled the court
to reach the decision that the T had at the time of making his will, knowledge of its contents.

**T unable to Speak/read/write

- Evidence was given in In the Estate of Holtam 1913 where a T was unable to speak read or write as to signs used
to establish that the T understood and approved of the contents of her will.
Suspicion
- Where a will is prepared and executed under circumstances which raise a well-grounded suspicion that the will
or some provision in it did not express the mind of the T, there is an onus on those who propound it to remove
that suspicion.
- For eg, if a party writes or prepares a will under which he takes a substantial benefit there will be a well-
grounded suspicion: Wintle v Nye 1959 and Moonan v Moonan 1963.

Undue Influence & Fraud

- This may affect the whole or part of the will.
- Undue influence means coercion- it may vary from actual violence to putting pressure on a weak and feeble T:
Wingrove v Wingrove 1885
o To establish undue influence sufficient to invalidate a will, it must be shown that the will of the T was
coerced into doing that which he did not desire to do and the mere fact that in making his will he was
influenced by immoral considerations does not amount to such undue influence so long as the
dispositions of the will express the wishes of the T.
- T may be persuaded but he should not be coerced- A T may be led but not driven: Hall v Hall 1868
- Fraud involves misleading T whereas undue influence involves coercing him to do something he doesnt wish to
do.
- Person alleging must prove this.

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