This chapter deals with the alienation by will of the beneficial interest in land (a).

The modern law of alienation by will is contained in the Wills Act of 1837 (7 Will. IV. and 1 Vict. c. 26).

The main provisions of this Act relating to wills of land are as follows: -

Section I. Rules Affecting The Validity Of The Will Or The Dispositions Contained In The Will

I. Form of a will. - By s. 9, the will must be in writing signed by the testator or by some other person in his presence and by his direction, and such signature must be made or acknowledged by the testator in the presence of two witnesses present at the same time, and such witnesses must sign their names in the presence of the testator.

The Act says that the signature must be " at the foot or end thereof"; but this has been modified by an Act of 1852, (b) and now the signature may be almost anywhere in the will, except that nothing which follows the signature, or which is written in after the signature, is valid.

(a) The legal estate cannot be given by will to any person other than the personal representatives. See p. 82. (b) 15 & 16 Vict. c. 24.

Note that there must be two witnesses and they must be both present at the same time when the signature is made or acknowledged by the testator.

But suppose that after this has been done, one of the witnesses signs his name and leaves the room, so that the other witness does not sign in his presence. The words of the statute seem to show that this would be sufficient, provided it is done in the presence of the testator. (And see Faulds v. Jackson, 1845, 6 N. of. C. Supp. 1.)

This decision has been doubted by some on the ground that "such witnesses" may mean "witnesses present at the same time," and it is therefore usual and better that both witnesses should be present both when the will is signed and when the witnesses sign.

No document can be admitted as a valid will unless it complies with these formalities, even though it is written throughout by the testator himself. This is called a "holograph " will.

Exception: wills of soldiers on actual military service and sailors at sea may be made in almost any form (c).

In the Goods of Scott, [1903] P. 243.

S, who had volunteered for service in South Africa, dictated the following words to the sergeant-major: - " In the event of my death in South Africa, I desire all my effects to be credited to my sister, Miss N. Scott." The document was not signed.

Held: The will was valid.

Before 1837 three witnesses were necessary by the Statute of Frauds.

II. - Revocation of a will. - A will may be revoked in any one of five ways.

1. By a subsequent will. - The new will need not necessarily contain an express revocation of previous wills, provided it clearly deals with the whole property.

(c) s. 11.

2. By a codicil. - A codicil is a document executed in the same manner as a will and is usually attached to an existing will for the purpose of modifying its provisions. The codicil may revoke all or any part of the will, but it is held not to revoke the will more than is necessary.

3. A deed or writing executed in the same way as a will. - If a testator writes on his will or on a separate paper a statement that he revokes his will, this will be sufficient, provided it is signed, by him and attested by two witnesses as required, by the Act.

4. By marriage (d). - The marriage of a testator gives rise to quite a different set of moral obligations and it is thought fairer for the wife and children that the law of intestacy should apply, if the testator should omit to make a new will after his marriage.

This rule does not apply in so far as the will merely executes a power of appointment over property which could not go to the wife or children in case the power was not exercised (d).

Thus, if lands have been given to such of the nephews of A as he should name in his will, and A makes a will before marriage distributing the land among the nephews, this distribution remains valid; for it would do no good to A's wife or children to declare it void.

Before the Act, marriage alone did not revoke a will, but marriage and birth of issue after the making of the will did revoke it.

5. By destruction with intention to revoke (e) (animo revocandi).

(1) If there is no intention to revoke, mere destruction does not revoke a will.

(d) S. 18. (e) S. 20.

Sugden v. Lord St. Leonards (1876), 1 P. D. 154.

Lord S kept his will in a box of which there were several keys. His daughter frequently read it through, and he made several alterations and additions to it. On his death the will had disappeared. It was clear that the testator had at any rate shortly before his death, no intention of revoking it, even if it had been destroyed by him (which was not proved).

Held, the will was valid, and might be proved by the daughter reciting it from memory.

(2) Intention to revoke without actual destruction does not revoke a will.

Cheese v. Lovejoy (1877), 2 P. D. 251.

A testator wrote across his will "this is revoked," and threw it into the waste-paper basket. The housemaid, thinking it an interesting document, did not destroy it, and it was found on the kitchen table after the testator's death.

Held, the will was not revoked.

The intention to revoke may be conditional. Then there is no revocation unless the condition is fulfilled.

Dixon v. Solicitor to the Treasury, [1905] P. 42.

A testator sent instructions to his solicitors to prepare a new will, and tore off and destroyed the signature to the old will, because he thought it was necessary to destroy the old will before he could make a new one. The testator died before the new will was made.

Held: He only intended to destroy it if the new one should bo made, and the first will remained valid.

III. If a will which revokes a former will is itself revoked, the earlier will does not revive (f).

If a will is revoked it becomes void, and cannot again become valid, unless it is re-executed as a will or incorporated into a new will.

IV. Effect of a gift to a witness. - The gift is void, but the witness remains a good witness.

(f) S. 22.

(a) Before the Act, if any person to whom anything was given by the will, signed it as a witness, his signature was useless, for his evidence was bad. The same rule applied if the gift was to the husband or wife of any witness.

The result of this was frequently to upset the will altogether; for if there were only three witnesses, and a legacy was given to one of them or to his wife, there were not sufficient witnesses to prove the will, since the Statute of Frauds required three witnesses.

(b) An Act of George II. (g), intending to remedy this enacted that in case of a gift to a witness, the gift should be void, but the evidence of the witness should be good.

This statute did not refer to a gift to the husband or wife of a witness, and therefore this curious result followed: that a gift to a witness himself did not destroy his evidence; but a gift to a wife did, and might make the whole will void (h). This is, now remedied.

(c) By the Wills Act, 1837, s. 15. A gift to a witness or the husband or wife of a witness is void; but the evidence of the witness is good.

A witness to a will cannot therefore take any benefit under the will, e.g.

Re Pootey (1888) 40 Ch. D. 1.

J, by will, appointed P one of her executors. P was a solicitor, and the will gave him power to charge for professional work done as solicitor. P witnessed the will.

Held, the power to charge being a power which the solicitor would not have had unless expressly given him by the will (see p. 72, note) was a gift, and was therefore void. Therefore P could not charge for work done.

V. Lapse. - When land is devised by will to a person, and that person dies before the testator, the gift fails, and is said to lapse.

(g) 25 Geo. II. c. 6.

(h) Hatfield v. Thorp (1822), 5 B. & Ald. 589.

As a general rule, a lapsed devise falls into residue. Thus, A by will gives "my land in Surrey" to B, and gives "all the residue of my real and personal estate to C"; if B dies before A, the land in Surrey becomes part of the residue and goes to C.

The same rule applies even if the land is devised "to B and his heirs."

Exceptions

(A) Where there is no lapse at all.

(1) Gift of an estate tail (i). - If the devisee takes an estate tail and dies before the testator, leaving issue, who survive the testator, and who could inherit under the entail, there is no lapse.

(2) Gifts to children (k). - If the devisee is a child or other issue of the testator, who dies before the testator, but leaves issue who survive the testator, there is no lapse.

In both these cases the devisee is deemed to have died immediately after the testator.

Thus, Eager v. Furnival (1881), 17 Ch. D. 115.

F devised land to his daughter Grace. Grace died. Then F died. Grace left an only child, who was living at the death of F, and the husband of Grace was also alive.

Held, Grace must be deemed to have died immediately after F. If she had done so, she would have become entitled to a fee simple in possession, and her husband would have been entitled to curtesy (see p. 126), i.e. an estate for life.

Held, therefore that land goes to the husband for life, and after his death to the child of Grace (/).

(i) S. 32.

(k) S. 33.

(l) (Note on second reading. It was also argued that the husband could not be entitled to curtesy as he was not "seised in deed," but held that this was impossible under the circumstances and "lex non cogit ad impossibilia.")

There are, however, some cases in which a child of the testator who dies before the testator will lose the devise.

These, being exceptions to the above exception, at first sight make the question very complicated; but they are really mere common sense, and should cause no difficulty if understood.

(i.) If the land is devised to the testator's children A, B and C as joint tenants.

In this case, if A died after the testator, his share will go to B and C, consequently the same result will occur if A dies before the testator.

(ii.) Where the land is devised to children as a class, e.g. "to all my children." This is prima facie taken to mean "all my children living at my death." Therefore, if any child dies before the testator, he will not take under this gift.

(iii.) Where the testator devises land to his children by reason of a special power to devise lands to his children only.

Holyland v. Lewin (1883), 26 Ch. D. 266. In this case it was held that the words " devised or bequeathed" in s. 33 of the Wills Act (for the text of which see p. 309) did not refer to an appointment under a special power.

(B) Where the devise lapses, but the land does not fall into residue. The rule is that a lapsed share of residue does not fall into residue.

Thus, if a testator gives various legacies and devises his dwelling-house to X, and then says, "I devise all the residue of my land to A and B in equal shares." This is equivalent to saying, "I give half my residue to A and half to B." Therefore, if A dies before B, B will not get the whole residue; but it will go to the heir of the testator as if he had died intestate.