The Popular Belief as to Will-making - The Rule in Former Days and in Modern France - The Unrestricted Power of the Testator - When Wills were Governed by Local Custom - Nuncupative Wills - What They Are and Who may Make Them - Children as Testators - Women and Their
Wills - Signing and Witnessing a Will - Misrepresentations
Most people are under the impression that they have a right to do what they like with their own property, even after their death ; but, as a matter of fact, no such natural right exists, and the rights which people have now acquired of disposing of the whole of their property by will have only been brought about by degrees, the history of which is beyond our limits.
For many reasons it is to be deplored that a person should have the power of disposing of his property in such a way after his death as to deprive his family and relations of that which they are clearly entitled to expect. Formerly, if a man died leaving a wife and children, with regard to his personalty, at any rate, his goods were divided into three equal parts, one for his wife, another for his children, and the third according to his will; and this or something very like it is the law in France at the present day.
But now in this country since the first year of the reign of Victoria a man may be persuaded by some designing persons to make a will in their favour to the exclusion of his wife and children, who are thrown on the world utterly unprovided for. And frequently, also, it happens that an elderly widower, often on the verge of senile decay, marries a young wife, and dies, leaving to her the whole of his property, a part of which should have been divided amongst his nearest blood relations - children, brothers and sisters, nephews and nieces.
The power " to cut off his heir with a shilling " does not date back later than the Wills Act of Henry VIII.; and the power to will lands of every description, including copyholds, did not exist before the days of George III., although an Act of Charles II. had made general the power to will lands other than copyhold. Beyond this, the fact whether a man could dispose of his land by will depended upon the custom of the place where the land was situated. The custom of Kent, for example, authorised a will of lands, and the custom was in existence and recognised before the time of Charles II. Such a custom likewise existed in London.
A nuncupative will is a will made by word of mouth without writing, and a will in that form without restriction was allowable down to the passing of the Statute of Frauds, • which prescribed certain formalities and the testimony of three witnesses at least where the property bequeathed by a nuncupative will exceeded the value of £30. Now, all nuncupative wills are invalid, except those made by soldiers on actual military service, or mariners or seamen who are at sea.
Soldiers and sailors engaged in actual warfare or at sea may make their wills by word of mouth instead of in writing. But this privilege does not extend to a soldier quartered in barracks, either at home or in the Colonies, or at Malta, under orders for the law 4394
West Indies, or to an officer on a tour of inspection of the troops under his command. But it does apply to a soldier joining a regiment with a view to marching against the enemy or to one who has received a mortal wound on the battlefield.
A " mariner or seaman being at sea" does not include an admiral of a naval station living on shore and who made his will at his house, nor to a seaman who made his will when he was in a British port and whose ship did not sail until several days afterwards.
But a seaman stationed at Portsmouth on board a training-ship was held to be " at sea," and a seaman, who being in harbour went on shore, and there was so severely injured that he died, was also so held.
Before the reign of Victoria, boys who were fourteen years of age and girls who were twelve years old were capable of making wills of personalty, but now no person under the age of twenty-one can make a valid will; except a will of personal estate only made by a soldier on actual military service, or a mariner or seaman at sea.
With regard to married women, the Wills Act says : " That no will made by any married woman shall be valid except such a will as might have been made by a married woman before the passing of this Act." But the exception has become more important than the rule, and all women married since December 31, 1882, have ample testamentary powers; while those married before that date can dispose by will of their unfettered separate estate.
No will shall be valid unless it shall be in writing and signed at the foot or end thereof by the testator - i.e, person making the will - or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator ; but no form of attestation shall be necessary.
Signature implies making a mark of some description, therefore tracing with a dry pen is not equivalent to a signature. But where a testator makes a mark or sign which is intended to stand for his name, the Court will not concern itself with the kind of mark which is used.
A stamped impression of the testator's signature, the mark of a testator whose name was not placed against the mark, or even of a testator against whose mark the wrong name was written, and signature in an assumed name, have all been held good.
Where a woman whose name was " Glover " signed her name as "Reed," that being the name of her deceased first husband, the signature was held good.
But where a witness signed her husband's name instead of her own, to give the will the appearance of having been witnessed by the husband, the signature was held bad.
The hand of the testator may be guided if he is unable from illness to do without that aid, but the ceremony of executing the will must be completed whilst the testator is living. To salve the conscience of Irish witnesses who came forward to swear that when the testator signed his will there was " life in his body," a live fly was placed in the mouth of the corpse before guiding its hand.
Signature by initials is also good. Witnesses
It is important to observe that the witnesses must be two in number, and that they must both be present to witness the signature of the testator. They need not be of full age, but must be old enough and intelligent enough to understand what is being done. There is no necessity for them to be made acquainted with the contents of the will; but if the testator makes any interlineations and alterations in the will, he should initial the same in the margin, and the witnesses should add their initials. It is also extremely important to remember that the will must not be witnessed by a person who (or whose wife or husband) is benefited by it. If the witness, his or her wife or husband, be the sole beneficiary under the will, then the will becomes valueless.
If, however, such witness, his or her wife or husband, be only one of the beneficiaries under the will, then the will will stand, but such witness, his or her wife or husband, will lose the benefit of the legacy.
Wife with Two Husbands
A wrong description of a legatee will not cause the legacy to fail except in cases where the character on account of which the legacy is given has been fraudulently imposed upon the testator. A man left certain legacies " to his wife Anne." In the year 1817 the testator had married the plaintiff, who was the person thus alluded to ; but it turned out that her first husband was then and at the hearing of the cause still living. The court being of opinion that no fraud had been practised on the testator, determined that the plaintiff was entitled to the benefits given her under the will.
A Fictitious Widow
A testator gave the income of his real and personal estate to a woman whom he described as his wife. A marriage ceremony had been performed between them, but when it took place the woman knew that she had a husband still living. She, however, represented herself to be a widow, and the testator believed her to be such. It was held that the bequest was void by reason of the fraud practised on the testator. The same man also gave a legacy to his stepdaughter, who was the daughter of the woman by her first and real husband. In her case it was held that the legacy was valid, the supposed motive for the gift not being due to any fault on the part of the stepdaughter. To be continued.