s9 Wills Act 1837 Flashcards
Purpose of s9 Wills Act 1837
s9 Wills Act 1837 as amended by s17 Administration Justice Act 1982
Formality rules apply to all testators making a will in England and Wales.
Recognise the importance of the act of will making and essential need for reliable evidence of testator’s testamentary intention.
Provision if s9(a) Wills Act 1837
Will must be ‘in writing’.
No definition of what constitutes ‘in writing’
Court general approach need not be written on paper providing there is a permanent visual form it can be written on any surface.
Two cases where a will was not written on paper
Re Murray 1963 - cigarette packet
Hodson v Barnes 1926 - Hen’s eggshell
Can a will be written in any language?
Name a case
Yes providing reliable evidence as to its meaning.
Re Berger 1989 - will written in Hebrew
Can initials be used to sign a will?
Name 2 cases
Yes, s9 does not define what is required for a signature
In the Goods of Savory 1851 - initials accepted
In the estate of Finn 1925 - thumbprint accepted
Best could have done.
Mark intended to represent signature will suffice
Does the position of the signature matter?
Name a case
s9(b) Wills Act 1837 as amended AJA 1982
It must appear testator intended by his signature to give effect of his will.
Weatherhill v Pearce 1995 - testatrix’s name in attestation clause was valid
What extrinsic evidence can be used to prove intention
Name a case
Affidavit evidence from witnesses
Marley v Rawlings 2014 - mirror wills - husband signed his wife’s will.
Purpose s21 and s20 AJA 1982
Content of the meaningless by s21 can be rectified by s20 AJA 1982.
Two cases where signature and witnessing must be one operation
Wood v Smith 1992
Re White 1991
Provision of s9(c) Wills Act 1837
Name two cases
Testator must sign in presence of 2 witnesses
Smith v Smith 1866 - mental presence
Brown v Skirrow 1902 - unobstructed line of sight
Provision s 9(d) Wills Act 1837
Name a case
s9(d) requires that each witness attests and signs the will
Testator must be mentally and physically when witnesses signing.
Casson v Dade 1781
Specific Order - Testator sign first in presence of two witnesses who then sign their retrospective signatures
What are the duel elements of presence when executing valid will
Mentally and physically present
Line of sight not obscured between testator and witnesses
Testator aware of what is happening - cannot object
Can another person sign a will on behalf of the testator and what is meant by ‘by his direction’ when executing valid will
Name a case for each
Smith v Harris 1845 confirms witness can sign on behalf of the testator. Can be own name or the testators - In the Goods of Clark 1839
Barrett v Bem 2012
By his direction requires that testator has made positive and discernible communication (verbal and non verbal) - communication key
Must be more than passive acquiescence
Requirements if Testator is blind
Name a case
No presumption arises - Affidavit evidence from the witnesses to establish both knowledge and approval and due execution in accordance with s9 WA 1837
s12 and 13 NCP Rules 1987
s9(d) no attestation clause required
Establish will read to testator, duly executed and testator duly understood agreed contents before signing.
Buckenham v Dickenson 2002
Important presumptions in case of Sherrington v Sherrington 2005
Will was duly executed
Testator had knowledge and approval of the will - Guardhouse v Blackburn 1866 (rebuttable presumption)
