WILLS.

Characteristics of a will.

What property may

of by will.

THE chief characteristic of a will is, that it is essentially ambulatory and revocable, and can have no operation, during the life of the testator. The form of the instrument is of no real importance, so long as its terms are altogether testamentary; but the circumstance of the grantor reserving a life interest to himself, with a general power of revocation, does not make the instrument testamentary. (Tompson v. Browne, 3 M. & K. 32).

The 3rd section of the Wills Act (1 Vict. c. be disposed 26.) enables every person to devise, bequeath, or dispose of, by will, all real estate and all personal estate which he shall be entitled to, 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 or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and the power of testamentary disposition extends to all real estate of the nature of customary freehold or tenant right,

or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if the act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will, or a surrender to the use of a will, should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in the act, if the act had not been made; and also to estates pour autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporael hereditament; and also to 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 to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests and rights respectively, and other real and

Infant cannot make a will,

nor a mar

ried woman, except in

special cases.

Attestation and signature under

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.

of

But no will made by an infant under the age twenty-one years is valid (1 Vict. c. 26. s. 7.); and this disability extends to married women (sect. 8.), except as to such wills as they might have made before the passing of the act, as, where a married woman has separate estate, or a power of appointment, or where she has the particular assent and authority of her husband, or when she, being an executrix, appoints an executor to continue the representation. (2 Bright's Hus. 2 Bright's Hus. & Wife, 66; 1 Wms. Exors. Part 1. Book 2. c. 1. s. 2., Ib. Part 1. Book 5. c. 2. s. 1).

Before the Wills Act, a will was void for the the old law. purpose of passing freehold estates, unless it was attested by three witnesses, but a will of copyholds or of personal estate required no attestation, and even if the testator's signature was wanting, the testamentary instrument was supported if it was reduced into writing by the testator's direction and in his lifetime. (Hayes and Jar. Conc. Wills. 70). Attestation Now, on the contrary, the attestation of the will by two witnesses is at once necessary and sufficient for every kind of property, and also for the execu tion of every testamentary power of appointment. (Sects. 9. 10). The will must 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 must be made or acknowledged by

and signa

ture under the Wills Act.

the testator in the presence of the witnesses, present at the same time, who must attest and subscribe the will in the presence of the testator; but it is declared that no form of attestation and that no other publication shall be necessary. (Sects. 9, 13).

position of

ture.

With a view to remove the difficulties which often As to the occurred in deciding as to the sufficiency of the the signasignature with reference to its position, an explanatory act (15 & 16 Vict. c. 24.) has been passed, by which it is provided, that every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him, be deemed to be valid, if the signature is 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 that 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 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

Gifts to attesting wit

ness.

Revocation of wills.

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; but no signature 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. If any testamentary gift (other than charges and directions for the payment of debts) is made to an attesting witness, or to his or her wife or husband, the person so attesting is admitted as a witness, but the gift is void. (1 Vict. c. 26. s. 15.) There is no objection to an executor being an attesting witness. (1 Vict. c. 26. s. 17.)

As the law at present stands, a will cannot be revoked by any presumption of intention on the ground of an alteration in circumstances (sect. 19); but it must be borne in mind that a will made by a man or woman is 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, customary heir, executor or administrator, or the person entitled as his or her next of kin, under the statute of distributions). (Sect. 18).

The 1 Vict. c. 26. ss. 20, 21. provide that no will or codicil in any other case shall be revoked,