(i) 32 Hen. VIII. e. 1. (j) Stat. 7 Will. IV. & 1 Vict. c. 2G, s. 3. (k ) Sect. 9.
Wills Act Amendment Act, 1852.
(l) Stat. 15 & 16 Vict. c. 24+.
The Statute of Frauds, it will be observed, required that the witnesses should be credible; and, on the point of credibility, the rules of law with respect to witnesses have, till recently, been very strict; for the law had so great a dread of the evil influence of the love of money, that it would not even listen to any witness who had the smallest pecuniary interest in the result of his own testimony. Hence, under the Statute of Frauds, a bequest to a witness to a will, or to the wife or husband of a witness, prevented such witness from being heard in support of the will; and, the witness being thus incredible, the will was void for want of three credible witnesses. By an act of Geo. II. (m), a witness to whom a gift was made was rendered credible, and the gift only which was made to the witness was declared void; but the act did not extend to the case of a gift to the husband or wife of a witness; such a gift, therefore, still rendered the whole will void (n). Under the new act, however, the incompetency of the witness at the time of the execution of the will, or at any time afterwards, is not sufficient to make the will invalid (o); and if any person shall attest the execution of a will, to whom, or to whose wife or husband, any beneficial interest whatsoever shall be given, (except a mere charge for payment of debts), the person attesting will be a good witness; but the gift of such beneficial interest to such person, or to the wife or husband of such person, will be void(p). Creditors, also, are good witnesses, although the will should contain a charge for payment of debts (q); and the mere circumstance of being appointed executor is no objection to a witness (r). By more recent statutes (s), the rule which excluded the evidence of witnesses in courts of justice, and of parties to actions and suits, on account of interest, has been very properly abolished; and the evidence of interested persons is now received, and its value estimated according to its worth; but the "Wills Act is not affected by these statutes (t). The courts of common law had formerly exclusive jurisdiction in questions arising on the validity of a will of real estate, whilst the ecclesiastical courts had the like exclusive jurisdiction over wills of personal estate. But an act has recently been passed establishing a Court of Probate (u), in which all wills of personal estate are now required to be proved. This act provides for the citation before the court of the heir at law of the testator and the devisees of his real estate; and such heir and devisees, when cited, will be bound by the proceedings (v); but this occurs only when a contest is expected or actually takes place. In all ordinary cases a will, so far as it affects real estate, does not require to be proved.
Who may be witnesses.
(m) Stat. 25 Geo. II. c. 6. (n) Hatfield v. Thorp, 5 Barn.
& Ald. 589; 1 Jarm. on Wills, 65, 1st edit.; 2 Strange, 1255.
Court of Probate.
(o) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 14.
(p) Stat. 7 Will. IV. & 1 Vict, c. 26, s. 15. See Gurney v. Gurney, 3 Drew. 208; Tempest v. Tempest, 2 Kay & J. 635.
(q) Sect. 16.
(r) Sect. 17.
(s) Stat. 6 & 7 Vict. c. 85; 14
& 15 Vict. c. 99, amended by stat. 16 & 17 Vict. c. 83.
(t) Stat. 6 & 7 Vict. c. 85, s. 1; 14 & 15 Vict. c. 99,s. 5.
(u) Stat. 20 & 21 Vict. c. 77, amended by stat. 21 & 22 Vict. c. 95.
(v) Stat. 20 & 21 Vict. c. 77, ss. 61, 62, 63.
So much, then, for the power to make a will of lands, and for the formalities with which it must be accompanied. A will, it is well known, does not take effect until the decease of the testator. In the meantime, it may be revoked in various ways; as, by the marriage of either a man or woman (w); though, before the Wills Act, the marriage of a man was not sufficient to revoke his will, unless he also had a child born (x). A will may also be revoked by burning, tearing, or otherwise destroying the same, by the testator, or by some person in his presence and by his direction, with the intention of revoking the same (y). But the Wills Act enacts (z), that no obliteration, interlineation, or other alteration, made in any will after its execution shall have any effect (except so far as the words or effect of the will, before such alteration, shall not be apparent), unless such alteration shall be executed in the same manner as a will; but the signature of the testator, and the subscription of the witnesses, may be made in the margin, or on some other part of the will, opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end, or some other part of the will. A will may also be revoked by any writing, executed in the same manner as a will, and declaring an intention to revoke, or by a subsequent will or codicil (a), to be executed as before. And where a codicil is added, it is considered as part of the will; and the disposition made by the will is not disturbed further than is absolutely necessary to give effect to the codicil(b).
Revocation of a will.
By burning, etc.
(w) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 18. " 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." In the goods of Fenwick, Law Rep., 1 Court of Probate, 319.
(x) 1 Jarman on Wills, 106,1st ed.; 102, 2nd ed.; 114, 3rd ed. See Marston v. Hoe d. Fox, 8 Ad. & Ell.14.
(.y) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 20; Andrew v. Motley, 12 C. B., N. S. 514.