THE MAKING OF A WILL

STATUTORY FORMALITIES IN COMPLIANCE WITH WILLS ACT Written form signature Witnesses Acknowledgement

WRITTEN FORM Section 5 a will must be in writing so as to become a strong evidence of testators wishes and to prevent fraud (therefore for example a will cannot be videotaped) Written means anything in form of pencil, printed, typed, computer. And if there is inconsistency the court will take judicial notice to the one in ink ball point pen Re Moore Will can be in code form so long as it can be decodified with the help of other decodifier such as a legend

WRITTEN FORM Material Paper is usually used. But there are cases where it was wrote on egg shell etc as long as it is permanent Hodson V Barnes : Will written on empty egg shell was held valid Murray - Will written on cigarette packet was held valid

SIGNATURE Section 5(2) It must be signed at foot and end Re Salman - Will signed at the top, therefore the will was held inoperative. It must be signed with intention and not under influence of alcohol, insane or unconscious. Also not under duress, coercion, fraud Signature however, need not be in full Intention means there is an intention to give legal effect to the will

SIGNATURE Re Chalcraft The testator was so ill that she cannot even write in full but only wrote "E Chal" but the will was held to be a valid one B Clarke It was held that the testator does not have to sign himself. He may also ask a third party to sign for him or on his behalf ( but he must be in right frame of mind and understand what he is doing) The testator can ask a third party to sign under the third party's name, provided that it is stated so in the will that a third party had signed on behalf of the testator

WITNESSES Section 5(2) Witnesses minimum of two persons The witnesses must see/ attest and then when the witnesses signs the testator must see/ be aware/ attest also Both witnesses must be aware of what was going on at the time. Thus if a testator signs his will in a crowded room, bus or train, the provision of Section 5(2) would not be satisfied because nobody will be aware of what the other was doing.

WITNESSES Brown V Skirrow Testator signed in font of witness A ( first shop assistant) while the second shop assistant was serving a customer and was unaware of what was going on. Blake V Blake Testatrix signed her will and later asked the witness to sign. At the time the witness signed the signature of the testator was covered from the sight of the witness by a blotting paper. Held: it was not a proper attestation as three persons must be present at the same time. Held:it was not a proper attestation as the witness did not see the signature (Although the fact that it the testator signed not in the presence of the witness was not in question)

Re Colling Testator being a patient in hospital asked a nurse and another patient to witness his signature. While he was signing and before he had completed his signature the nurse was called away to. attend to another patient. The testator continued on signing and the other witness signed as well. When the nurse returned, the testator and the patient both acknowledged their signatures and the nurse then added her signature. held : the attestation was invalid as both the witness did not subscribe to the will after the operative signature ofthe testator

WITNESSES: Capacity of the witness 1) Mentally Sound Adult We may choose t minor to be a witness but it must be remembered that he may have to go court to testify if there is a contest Re Gibson A blind man cannot be a witness. Pearce J said" Witness is the one who has the faculty of hearing and seeing for the signing act is a visible matter." Other people who may not be a witness are drunkards, illiterate and people of unsound mind as they are not mentally present when the testator signs Smith V Thompson A will is good even though attested by a minor of 16 years old

2) Section 9 The spouse of beneficiaries cannot be a witness The Estate of Bravda the spouse attested to the will, and therefore the will failed to be admitted to Probate. ( Therefore the property will be distributed according to the Distribution Act) Ross V Caunters He sued the solicitors for professional negligence because he failed top tell him that he cannot be a witness because his wife is a BNF. Therefore she received nothing and the solicitor was held negligent. WITNESSES: Capacity of the witness

3) Section 10 Creditors can be a witness 4) Section 11 Executors can be a witness unless he is incompetent WITNESSES: Capacity of the witness