Re White (Deceased) (1988)

English Succession Law

Re White (Deceased)
‘Old Men of the Almshouse’ by Robert Lenkiewicz

Amendments to any existing will are subject to the terms of the Wills Act 1837, and so on this occasion the revisionary wishes of the now deceased fell victim to the powers of statute, when after coalescing with his closest friends, insufficient steps were taken to enforce the redrafted will, resulting in a loss of beneficial rights and the sting of natural law.

In 1981, the testator drafted a will that included apportioned bequests to an extended number of acquaintances, some of which stood to benefit from his generosity in substantial quantity. In 1984, and for one reason or another, the testator chose to amend the will so as to allow for partial intestacy, along with revised percentages of benefit for those closest to him.

Having executed the changes in the company of those elected to attest his actions, additional text was added at the foot of will in such a way that showed the will had been amended and attested by the two parties present, yet with the exception of a new signature by the testator himself.

Under powers of the Wills Act 1837, s.9 (as substituted by the Administration of Justice Act 1982 s.17) reads:

“No will shall be valid unless (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

While s.21 of the 1837 Act reads:

“[N]o obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or 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 like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses 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.”

Or put simply by Buckley J in In re Hay:

“[I]it is quite plain that an alteration in a duly executed will made after the execution thereof is not effective unless the alteration is executed in the manner required by the statute for the execution of the will.”

Unfortunately for both the testator and the defendants, this resulted in the amended will no longer standing as valid on grounds that no new signature had been added by the testator during the amendment, and that the signatures of those witnessing were not considered as that attesting the new will, only the amended statements.

This had a secondary effect, inasmuch as at the point of litigation through a writ challenging the validity of the 1984 will, the claimant was now unable to receive any residual estate, while those who also stood to gain from the revised percentages would have been left unable to claim under the new will, as they were acting as both witnesses and beneficiaries, which is unlawful under s.15 of the Wills Act 1837.

Re Denning (1958)

English Succession Law

 

Re Denning
‘Pill Creek, Feock, Cornwall’ by Christopher Wood

The formalities of a last will and testament are brought to bear when upon their death, the testator had left a declaration of intent, but with two named individuals on the reverse and nothing to connect them.

In accordance with the rules of probate, the alleged beneficiaries applied for a grant of letters of administration, on the strength that the deceased had orally expressed her intention to bequeath all her possessions to two cousins, upon which she had written on a small sheet of plain paper, words echoing that sentiment, yet with only ‘signed’ at the foot of the document. Written on the reverse, and while upside down, were the two names of women who had since become untraceable.

Keen to endorse the aims of the testator, the judge explained that perhaps the time was right for the application of the maxim omnia praesumunter rite esse acta meaning ‘all things are to be done in due form.’

It was also noted that as expressed by Sir Francis Jeune in In the Goods of Peverett:

“[T]he court will not allow a matter of form to stand in the way if the essential elements of execution have been fulfilled”.

It was further commented that at that time, the court felt it had extended its willingness to uphold the wishes of a testator to its fullest; however the judge felt that despite the presence of an attestation clause in Peverett, there was little to connect the names of the two women to the express desires of the deceased.

Despite this, and in keeping with the powers of a court to declare that which was clearly felt at the time of writing the will, the judge took the decision to extend the boundaries further, as there was no credible reason why the two signatures were entered on the reverse other than to attest and support the wishes of another.