How Wills may be Revoked - Wills Destroyed by Angry Legatees - What is Meant by Being of Sound Mind - An Unusual but Valid Will - Wills Made Under Suspicious Circumstances - Wills Made Abroad - Wills Made by the Wives of Naturalised Foreigners - The Disposing of English and Colonial Property - A Curious and Puzzling Testament
How a Will is Revoked
E very will made by a man or woman is re-voked by his or her marriage, except a will made in the exercise of a power of appointment, with which we need not trouble our readers. The important point to remember is that marriage revokes a will previously made by either of the parties, so that people should make a fresh will after their marriage.
It is said to be a maxim of law that "no man can die with two testaments," but this must be accepted with some reservation. Wills usually begin, "This is the last Will and Testament," and the last will is the one to take effect; but if a person has neglected to destroy a previous will whose provisions are not inconsistent with his last will, both documents may be admitted to probate as together containing the will of the testator.
The safest and surest way of revoking a previously made will is by destroying it. Cancelling or obliterating a will does not revoke it, tearing or cutting it may only revoke a part of it, and only partially burning it is sure to lead to litigation.
Destruction, by Legatees
Where a disappointed legatee got possession of the will after it had been read over to her and tore it in pieces, one of which was subsequently missing and was supposed to have been carried away by her, the Court allowed the contents of the missing part to be proved by affidavit, and granted probate of the pieces.
In another case a testatrix very foolishly showed her will to her sister-in-law, and the latter in her presence, but contrary to her wishes, first tore and then burnt the will. The testatrix, however, though pressed to make another will, refused to do so, and the Court held that this was not a destruction of the will within the meaning of the Act, and that probate ought to be granted of the original will as contained in the affidavit of the executor.
In order to make a valid will the testator must be of sound mind; but this does not mean a perfectly balanced mind, for even a lunatic may make a good disposition of his property in a lucid interval; but the burden of proving capacity to make a will rests upon those who propound the will.
Although it is true to say that a will may be set aside on the grounds of undue influence, evidence of bad companionship and bad example will not be sufficient; it must be shown that the influence was exercised by coercion or by fraud, so that the testator was induced to do the exact contrary of what he or she wished to do.
A will cannot be set aside because it is not one such as a sensible person would make, or because it is harsh, capricious, or unjust.
A man who had made a will died, leaving two letters sealed and directed "for S. G., my late servant," who had formerly been his housekeeper. These letters contained promissory notes for large sums of money, and one of the letters stated that the testator "enclosed L200 as a mark of respect," and the other letter stated that "the enclosed was for her long and faithful services." It was held that this was a legacy, and that it failed because it was not properly witnessed.
Unusual but Valid
A man signed in the presence of witnesses two orders on a savings bank to pay to his wife at any time she might apply for the same any money deposited, and died the following day. The Court granted administration with the two orders as together containing the will of B. annexed to his widow.
"I wish my sister to have my savings-bank book for her own use." A paper to this effect was signed in the presence of two witnesses, and the savings-bank book handed over to the sister, who did not, however, draw out the money in the lifetime of the deceased. The Court was satisfied that the deceased intended it should operate on her death, and admitted it to probate.
Where a will is prepared and written by a solicitor or a doctor in attendance on a testatrix at that time dangerously ill, and without the assistance of any third person, by which will they are made the principal object of the testatrix's bounty, to the exclusion of her near relations, the Court will view their conduct with the utmost jealousy.
A testatrix duly executed two inconsistent wills, bearing the same date and written on different sides of the same sheet of paper. Evidence was admitted to show that the deceased signed one of them only as her will, and signed the other by mistake. The Court granted probate of the paper signed by the testatrix with the intention that it should operate as her will, and not of the other paper.
Wills made Abroad
A will disposing only of property in a foreign country is not admitted to probate in this country; neither is a will executed abroad by a foreign subject in accordance with the requirements of the English law. An Englishwoman was married to a Frenchman, and resided with him in France until his death. Some time after that event she left her place of residence and went, with her baggage and children, to Calais, where she went on board an English steamer with the intention of crossing over to England and settling down over here. But before the vessel left the harbour she became so ill that she was obliged to re-land, and never became well enough to make the voyage. It was held that her domicil was French, and that her will made in the English form could not be admitted to probate.
Although by the Naturalisation Act the domicil of a married woman follows that of her husband, in the case where the testatrix, a British subject married to a naturalised Frenchman, made a will according to the requirements of the English law, the Court admitted the will to probate, being satisfied that the testatrix by French law was a British subject, and that the French courts would give effect to the will so far as it dealt with property in France.
Where a testator died, leaving two wills, one limited to property in England and the other to property in Tasmania, and appointing different executors in each, the Court granted probate of both papers as together constituting his will to the executors named in the English will.
Where a testator left two wills, one disposing of his property in Australia and the other dealing with his property in England, on the same trusts, the Court directed an affidavit of the contents of the Australian will to be attached to the probate.
In the case where a testator executed two wills, one dealing with his English property only, and the other dealing exclusively with his property in South Africa, different executors being appointed for each, the Court granted probate of the English will only, but ordered an affidavit to be filed exhibiting a copy of the South African will and a statement to that effect inserted in the probate.
A will made according to the forms of English law by an alien who, though her domicil of origin was English, was domiciled abroad at the time of making her will and at her death, is not entitled to probate.
A British-born subject left England many years before death, resided in Paris for the last fifteen years of her life, and died there, assumed for many years an Italian name, and described herself and was described in legal documents as widow of an Italian.
There was no evidence of her having been legally married, and her own statements made in regard to the marriage were contradictory. She had real property in India, the bulk of her personalty in England, and made her will in the English form, disposing of her property amongst English persons. Held that by the law of nations the deceased was domiciled in France, but that, as she had not been naturalised nor acquired an authorised domicil as required by the law of France, she might by the French law make a will in the English form, and that such will was entitled to probate in this country. (To be continued.)