UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 3103 – LAW OF SUCCESSION

Succession/September 2020/SB

COURSE OUTLINE

A. GENERAL
This course will be taught in the First Semester of Year 3 as an elective course of the L.L.B
Degree Programme.

B. Course Objective

The objective of this course is to examine the law governing the transmission or devolution of
property on the death of the owner.

The transmission occurs in two stages:

(a) By operation of law to one or more personal representatives of the deceased person for
the purpose of administration of the estate of the deceased.
(b) A transmission usually by the act of the personal representative to the person or persons
so entitled to the beneficial enjoyment of the property.

The transmission to a representative for the purposes of administration is advantageous in three

respects. Firstly, it facilitates the protection and preservation of any property vested in him
pending its distribution. Secondly, it provides debtors and creditors of the deceased with an
opportunity to have respective rights and duties properly adjusted. Thirdly, it provides the
machinery for the proper distribution of the balance among those beneficially entitled thereto.

C. Course Content

1. Testate Succession
Testate Succession refers to the transmission of the property of the deceased in accordance
with their wishes as stated in a will.
In these cases there is the transmission of the property of the deceased according to the
testator’s wishes as stated in the will (subject to the provisions of the Family and Dependents

1
Provision Act 1990 (Chapter 12:24/Act No. 22 of 1990)) and is effected by the grant of
Probate which is issued to the executor/executrix.

Testate succession is effected by a grant of representation which is either by:

 a grant of Probate - this grant is only issued to a named executor/ executrix duly
appointed by the will or a codicil; or
 a grant of Letters ofAdministration with Will annexed - this grant is issued to an
Administrator where there is a will but for some reason it is not possible to issue a grant
of probate to an executor/ executrix.

(a) General
(i) Wills Definition
(ii) Characteristics of Will
(iii) Wills distinguished from other forms of depositions of property.
(iv) Types of Wills.

(b) Requisites of a Valid Will

(i) Formalities governing making of Wills
(ii) Animus testandi – mental/testamentary capacity.

(c) Revocation of a Will. Revocation refers to the (effective) cancellation of a will.

(d) Alteration/Interlineations/Obliteration.

(e) Revival/republication/incorporation by Reference

(f) Construction of a Will

(i) General rules of construction

(ii) Specific rules of construction
(iii) Admissibility of extrinsic evidence as an aid to construction

2. Intestate Succession

Intestate succession is the situation in law in which there is no will (total intestacy), or in
which there is partial intestacy, (that is, there is property which has not been disposed of
by the will/will disposing of some of the property).

In these cases there is the transmission of the property of the deceased according to the
laws relating to intestacy (subject to the provisions of the Family and Dependents
Provision Act 1990 (Chapter 12:24/Act No. 22 of 1990)) and is effected by the grant of
Letters of Administration often called simple administration which is issued where

2
 the deceased died wholly intestate, to the persons so entitled, in accordance with the laws
of distribution. This grant is issued to an Administrator.

D. Method of Teaching

This course will be taught by way of two lectures and one tutorial per week. Each lecture will be
of one-hour duration and the tutorial will also be of one-hour duration.

E. Method of Assessment

This course will be assessed by way of a two-hour final examination at the end of the semester.
Students will be required to answer three questions selected from a total of six questions.

F. Attendance and Participation

Regular attendance at lectures and tutorials is mandatory. Failure to meet the attendance
stipulation will result in refusal to write the final examination and the inevitable failure of the
course.

G. Recommended Reading Material

1. TEXTS

(i) Mellows, Anthony R. – Law of Succession

(ii) Clark, J. B. - Parry & Clark The Law of Succession

2. LEGISLATION

(i) Children Born Out of Wedlock (removal of Discrimination) Act 1983 Guyana
(Act No. 12 of 1983)
(ii) Civil Law of Guyana Act Cap 6:01.
(iii) Deceased Persons’ Estates Administration Act Guyana Cap 12:01
(iv) Equal Rights Act 1990 (Act no. 19 of 1990)
(v) Estate Duty Act Guyana Cap 81:23
(vi) Family and Dependents Provision Act 1990 (Act No. 22 of 1990)
(vii) Intestates Estates Act 1890 (UK) adapted in 1917 by the Civil Law Act of
Guyana, Cap, 6:01
(viii) Public Trustee Act Guyana Cap 13:01

3
 (ix) Trustee Act 1893 (UK) 1894 (UK) incorporated in 1917 by the Civil Law Act of
Guyana, Cap, 6:01
(x) Wills Act 1837 (UK) Incorporated (in part) in 1917 by the Civil Law Act of
Guyana, Cap, 6:01
(xi) Wills Act Guyana Cap 12:02

3. CASES

H. Terminology

Administrator - a person appointed by the court to administer the estate where there is no
executor.

Bequest or Legacy - a gift of personal property by Will.

Codicil - a testamentary document which adds to, explains, alters or confirms a will previously
made by testator.

Decedent – deceased person

Estate - the property both real and personal of a deceased person.

Executor - a personal representative appointed under a valid will.

Intestate succession- where is deceased person has not made a will or has made a will which is
not valid or which fails to dispose of the entire estate.

Letters of Administration – a document issued by the Probate Division of the Supreme Court and
is the official evidence of an Administratrix’ (personal representative’s) authority.

Personal representative - the person who administers the estate of a deceased person whether
testate or intestate.

Probate – a document issued by the Probate Division of the Supreme Court and is the official
evidence of an Executrix’ (personal representative’s) authority.

Revocation - the (effective) cancellation of a will.

Testamentary/testate succession -the situation in law where there is valid will.

Testator/ testatrix - a deceased person who has made a valid will.

Will - a declaration by which a testator provides for distribution of property after his death.

4
Sandra Bart
September, 2020

5
UNIVERSITY OF GUYANA
FACULTY OF SOCIAL SCIENCES
DEPARTMENT OF LAW

LAW 3103 – LAW OF SUCCESSION

Succession/November, 2020/SB

WORKSHEET No. 1 CHARACTERISTICS OF A WILL

1. General Introduction.

A person who has died “testate” would have died leaving a valid will and a person is said to have
died “intestate” if such a person died without leaving a will.

.
A will generally refers to the document/s in which a person expresses their intention in respect of
the matters which they wish to take effect on or after their death.

When a person dies testate, things are a bit easier since all that his/her Personal Representative
will be required to do is to apply for and obtain a grant of Probate which merely validates his
Will and allows the Personal Representative to carry out or effectuate the wishes of the testator
e.g. distributing the property according to the wishes of the testator.

However, where a person has died intestate, his/her personal representative will apply for
Letters of Administration to deal with his/her estate, which may sometimes be a bit complex,
hence the importance of making a Will.
Their estate is distributed by the laws of intestacy as set out in the Civil Law of Guyana Act Cap
6:01.

Note the difference between testate and intestate succession. They are referred to as the twin
regimes/ two branches in place to regulate the law of succession and are as follows:

(a) The law of testate succession –

Regulating the devotion and distribution of the property of a person who dies having
made a will disposing of it; and
 (b) The law of intestate succession –

Regulating the devolution and distribution of the undisposed of property of a deceased

person.

2. Definition of a will.

The testator's will is the document or documents in which the testator expresses their wishes and
states what they intend to become of their property at their death. It should embody the testator’s
will, meaning desire in the sense of volition, and it must comply with the statutory requirements
as to formalities.

Mellows on Succession defines a will as "a revocable declaration made in the prescribed form of
the intention of the person making it of the matters which he wishes to take effect after his death
until which time it is revocable"

Parry and Clark The Law of Succession-

A will is the expression by a person of wishes he/she intends to take effect only on his/her
death…

AG v Jones & Bartlett (1817) 3 price 368 at 391

Lemage v Goodban 1865 13 LT 508; (1865) LR 1 P & D 57, per Sir JP Wilde who defined a
will as follows:

"The will of a man is the aggregate of his testamentary intentions,

so far as they are manifested in writing, duly executed according to
statute..."

See- Borkowski’s Law of Succession by Brian Sloan. 3rd Edition

3. Characteristics of a will
The aforesaid definitions indicate that there are at least six characteristics of a will.
a. the scope of a will is not confined to dispositions of property;
b. it is always revocable;
c. it takes effect on death;
d. is ambulatory
e. a will operates only as a declaration of intention; and
f. it must usually be in prescribed form
 a. The scope of the will is not confined to dispositions of property.
Although the principal aim in making a will is to dispose of property, a will may also be made
for the following reasons
i. to appoint executors and/or trustees
ii. to appoint special personal representatives
iii. to appoint guardians of infants
iv. to confer special powers on executors and/or trustees
v. to give directions as to burial or cremation, sanction the use of the body or parts thereof
for therapeutic or educational use
vi. to exercise a testamentary power of appointment given to testator under previous will or
settlement and which is exercisable by deed or will
vii. to revoke wills and/or codicils
viii. to exclude various equitable rules.

Re Skeats, Thain v Gibbs (1936) Ch 683

b. The will is always revocable.

This characteristic flows from the fact that a will only takes effect on death. A will may at any
time be revoked by the testator unless he ceases to be of unsound mind and thereby loses his
testamentary capacity. Even in cases where there is a contract not to revoke a will, the will itself
may be revoked although an action for damages for breach of contract may lie.
As in the case of joint or mutual Wills.

Vynior's Case 1609 8 Co Rep 816-

Will contained a declaration that it was not revocable.
Court held that declaration invalid.

Synge v Synge 1894 1 QB 466

Re Marsland 1939 3 AER 148 (CA)

c. Will takes effect on death of testator.

A will take effect on death only so that neither the beneficiaries nor the executors have any
interest whatever in the testator’s estate until his death. Accordingly, if a beneficiary dies
between the time when the will is made and the testator’s death, his estate will generally derive
no benefit under the will.
Re Currie's Settlement 1910 Ch 329.
Bullock v Bennett 1855 7 DeGM &G 283
[Link] and Bartlett 1817 3 Price 368, at p 391.

d. The will is ambulatory.

A will speaks from the death of the testator. Therefore it can be changed at any time before death
and is capable of dealing with property acquired by the testator after the date on which it was
made provided it was owned by the testator at his death.
 e. The will is merely a declaration of the testator’s intention.
A will is said to be merely a declaration of the testator’s intention therefore-

i. the testator is still free to dispose of the property inter vivos; and
ii. the executor has the authority to, and may sell the property during the course of
administering the estate.

Bullock vBennett 1855 7 DR GM & G 283

[Link] and Bartlett 1817 3 Price 368, at p 391.

f. Must be in prescribed form.

In all cases other than Privileged Wills, a will must be in writing, signed at its foot or end by the
testator or by some other person in his presence and by his directions and must be witnessed by
at least two other persons

Section 4 Wills Act Guyana Cap 12:02

4. Wills versus other dispositions.

a. Gifts inter vivos

A will is distinguishable from a gift inter vivos with respect to the time when it takes effect as
well as to the formalities required.
As regards time, the general rule is that a gift inter vivos is effective at the time of the execution
of the deed whereas a gift by will takes effect only on the death of the testator, although a future
interest in property could also be conferred by inter vivos gift, so that the end product may be
similar to a gift by will (see revocable settlement inter vivos).

As regards formalities, these are different. In the case of gift by will, the only formalities
required are that it must be in writing there must be the signature of the testator and the
attestation by at least two witnesses. In the case of gifts inter vivos the formalities vary and will
be dependent upon the type of property which is the subject of the gift. A gift of land for
example must be by deed, a gift of shares in a company must be by transfer and registration.

In practice little difficulty is experience in determining whether a document is intended to

operate as a will or to effect a gift inter vivos. It should be noted however that where an attempt
was made to create a gift inter vivos but that attempt has been ineffective the document by which
that attempt was made will not be regarded as a will even if it refers to the person's death. This is
so since a person must intend a document to take effect on death if that document is to be
admitted as a will.
Milnes v Foden 1890 5 P &D 105
Dillon v Coppin 1839 4 My & Cr 647
 b. Revocable settlement inter vivos.
A revocable settlement is an instrument which creates a present interest in property. A will
confers only an interest upon the death of the testator.
If Andrew desires to leave his house to Benjamin he (Andrew) may convey the house inter vivos
to trustees to hold upon trust for himself (Andrew) for life with remainder to Benjamin. Andrew
may also include a power of revocation in the deed. If Benjamin survives Andrew the effect of
this transaction would be the same as if the house had been given by Will.
Note that Benjamin acquires an interest in remainder in Andrew’s house the moment the
settlement is executed so that if Benjamin predeceases Andrew without Andrew revoking the
settlement, Benjamin’s estate will take the interest which Benjamin would have taken had he
survived.

c. Donatio mortis causa

Donatio mortis causa is a revocable gift by a person made in contemplation of his/her impending
death and conditional upon that death. It is a type of gift which is midway between a gift inter
vivos and gift by will. It consists of a gift made by a person during his lifetime with the intention
that it will take effect only on that person’s death and while the gift is conditional upon their
death, once that condition has been fulfilled the gift takes effect retroactively from the date it was
made. It follows therefore that the donor must have intended that the gift should be absolute
upon the condition being fulfilled. If the donor dies as contemplated the gift becomes absolute.
If he does not the property reverts to the donor.

See:
Staniland v Willott (1852)
Beaumont, Beaumont v Ewbank 1902 1 Ch 889, 892
A valid Donatio mortis causa must fulfill the following three conditions:
i. the gift must be made in contemplation of the donor's death;
ii. the donor must intend it to be conditional upon his/her death, but subject thereto to be
unconditional; and
iii. the donor must have parted with dominion over the asset.

Cain v Moon [1896] 2 QB 283 - Lord Russell CJ

5. Types of Wills
a. Standard will
This is the usual will made by one person alone and is intended to take effect unconditionally
upon his death.

b. Variations of standard will

These are variations of a standard will which may be classified as conditional, joint and mutual
Wills.
i. Conditional Wills
A conditional will is one made with the intention that it shall take effect only upon the happening
of a specified event.
Re Thomas 1939 2 AER 567
Re Vines 1910 P 147
Re Govier 1950 P 237
In the Goods of Hugo 1877 2 PD 73
In the Goods of Spratt 897 P 23, 32
Corbett v Newey 1998 Ch 57; The Times 3 May, 1994
Re Parsons v Lanoe 1748 1 Ves Sen 187

Note that the court in interpreting a conditional will looks at-

a. the language of the document
b. the circumstances surrounding the making of the will
c. extrinsic evidence to determine whether the will is in fact conditional.

ii. Joint Wills

Where two or more persons incorporate their testamentary wishes in a single document and
execute it in accordance with the statutory requirements as to formalities those persons are said
to have made joint Wills.
In the goods of Piazzi- Smyth, L. R. 1898, 1 P. 7.
In the Estate of Heys 111 L. T. Rep. 941;(1914) P. 192)

iii. Mutual Wills

These are wills made by two or more persons in one or two documents usually in substantially
the same terms and conferring reciprocal benefits following an agreement between them to make
such Wills and not to revoke them without the consent of the other.
It should be noted that this agreement is an enforceable contract. However since one of the
cardinal principles of the law of wills is that a will may always be revoked, this Mutual will can
be revoked. This revocation may give rise to an action for breach of contract or breach of trust.

(c) Privileged Wills (Soldiers/Mariners)

Section 11 Wills Act UK 1837
Section 6 Civil Law of Guyana Act Cap 6:01
This type of will is a will made without any formal requirements. It may be completely oral or it
may be completely written and if written it need not be signed or witnessed in the usual manner.
Note however, that it is still necessary to show an intention to make a will.
While formalities are generally thought necessary for making a will, it is realised that in certain
exceptional circumstances a person should be able to make a will without formality.
This class of Wills is available to a limited class of person in certain exceptional circumstances
such as persons in grave danger which accentuates the desire to make a will and he/she is
deprived of the normal means of consultation before making a will. Examples of such persons
are members of the Armed Forces in actual military service Mariners or seaman at sea
Re Stable [1919] P. 7
''If I stop a bullet, everything of mine will be yours''
Re Wingham [1949] P. 187, per Denning L.J.
Re Gibson[1949] 2 All E.R. 90
Rapley's Estate, Re;Rapley v Rapley [1983] 3 All ER 248
In the Estate of; Newland, In the goods of Newland, [1952] P. 71; [1952] 1 All E.R. 841; [1952]
1 Lloyd's Rep. 280; [1952] 1 T.L.R. 896

6. Codicils.
A codicil is a testamentary document which modify or varies the terms of the will to which it
relates. The law and practice relating to the execution and attestation of codicils is the same as
that which is applicable to wills. A codicil is proved at the same time as the will to which it
refers and one grant issues in respect of all documents.

Tutorial Questions:
1. Nickesha wishes to “put her affairs in order” but is uncertain as to the purpose and effect
of a will and how a will differs from other inter vivos dispositions.
Advise Nickesha.

2. Renelia, a 65 year old retired banker of Hague, executed a will on November 10th, 1995
in which she devised a 2 acre Lot of land at Werk-en-Rust to her friend Jocelyn absolutely, but
should Jocelyn predecease her, the said land should go to Ramkumarie. She also left cash to
them both. Ramkumarie and Jocelyn are touched by this gesture and Ramkumarie is sure that
both Jocelyn and Renelia would assist her with her schooling expenses. On July 2, 2000,
Tequain, the General Manager of the MoBOil Company offered to Renelia a substantial sum of
money to purchase the 2 acre lot which she has devised to Jocelyn. Renelia wants to sell to the
company but is uncertain as to whether she can do this without incurring any legal penalties.
Advise Renelia.

3. Travis executes a will which contains the following clause:

“executes a will which contai I own to my dear friend, Paula, absolutely.i
At the date of Travis’ will, he owned 2 properties, 2 motor cars and one motor tractor.
At the date of his death he owned 1 property and 4 motor cars. Paula finds out that six months
before his death, Travis gave 1 property and the motor tractor to his good friend Joshua.
Advise Paula.

Sandra Bart

November 2020
UNIVERSITY OF GUYANA
FACULTY OF SOCIAL SCIENCES
DEPARTMENT OF LAW

LAW 3103 – LAW OF SUCCESSION

Succession/November, 2020/SB

WORKSHEET 3 REQUISITES OF A VALID WILL

1. INTRODUCTION

As mentioned previously, a will generally refers to the document/s in which a person

expresses their intention in respect of the matters which they wish to take effect on or
after their death.

Lemage v Goodban 1865 13 LT 508; (1865) LR 1 P & D 57, per Sir JP Wilde who
defined a will as follows:

"The will of a man is the aggregate of his testamentary intentions,

so far as they are manifested in writing, duly executed according to
statute..."

For a will to be valid (save in the case of privileged wills) so that it can be admitted to

probate, certain requirements must be met. It must be made in proper form by a person of

sufficient age, and in compliance with prescribed formalities and the necessary mental

element must be present.

2. REQUIREMENTS

There are several requirements which are to be met to ensure that a will is valid.

(a) Formal Requirements- certain formalities must be complied with- the will

must comply with certain formal requirements as laid down by statute

(b) Animus testandi- there must be testamentary capacity - the person making

the will must have testamentary capacity

1
 (c) Age of majority- the will must be made by a person who has attained the age

of majority

3. Age of majority- the will must be made by a person who has attained the age of

majority.

-Section 6 Civil Law of Guyana Act Cap 6:01 (Section 7 UK Wills Act 1837

–applicability to Guyana)

-Section 2 Representation of the People (Adaptation and Modification of

Laws) Act Cap 1:09

4. FORMALITIES

Section 4 of the Wills Act, Cap 12:02 sets out the formalities required for the making of a

valid will. Failure to comply with these formalities results in the will not being admitted

to probate. The testator’s intention will therefore not be given effect to as the estate is

then distributed according to the rules of intestacy.

- Purpose of formalities

The purpose of formalities is to ensure that the will is truly the one the testator intended

to make, that is not a forgery, or the result of undue influence, or something made in the

heat of the moment.

4.1. SECTIONS 4 AND 5 OF THE WILLS ACT, GUYANA CAP. 12:02 (Section

9 of the Wills Act, UK, 1837)

Section 4 of the Wills Act, Guyana, Cap 12:02 provides:

2
 “No will made in Guyana shall be valid unless it is in writing and executed in
a manner hereinafter mentioned: that is to say, it shall be signed at the foot
or end thereof by the testator, or by some other person in his presence and by
his direction, and the signature shall be made or acknowledged by the
testator in the presence of two or more witnesses present at the same time,
and those witnesses shall attest and shall subscribe the will in the presence of
the testator, but no form of attestation shall be necessary”.

Section 5 provides inter alia, that:

“Every will shall, so far only as regards the position of the signature of
the testator or of the person signing for him, be deemed to be valid
within the preceding section if the signature is so placed at or after, or
following, or under, or beside, or opposite to, the end of the will, that
it is apparent on the face of the will that the testator intended to give
effect by that signature to the writing signed as his will.
…”

Summary of sections 4 and 5:

No will shall be valid unless:

(a) it is in writing; and

(b) signed at the foot or end thereof;

(i) by the testator, or

(ii) by some other person in his presence and by his direction; and

(c) it appears that the testator intended by his signature to give effect to the will

(Section 5); and

(d) the signature is

(i) made or

(ii) acknowledged

by the testator in the presence of two or more witnesses present at the same time;

and

3
 (e) each witness must attest and sign the will in the presence of the testator (but

not necessarily in the presence of the other witness)

 But no form of attestation shall be necessary,

 This requirement of formalities applies to all wills, with the sole exception of

privileged wills.

4.2. REQUIREMENTS OF SECTIONS 4 AND 5

4.2.1 A will must be ‘in writing’

Section 4 of the Wills Act, Cap. 12:02 provides that a will must be in writing. This

means that a will is not valid unless it is in writing.

Exception – Privileged Wills – an oral will can be made by a privileged testator.

(a) Meaning of “in writing”

There is no statutory definition of writing. Permanent visual representation is what is

required.

(b) Medium used

A will may be written in pencil or in ink or a combination of the two, but there is a

rebuttable presumption that the pencil writing in such a combination was only

deliberative.

In the goods of Adams (1872) LR 2 P and D 367

(c) Language used

4
A will can be written in any language, even in code, provided there is reliable evidence as

to what the language means or that the code could be deciphered. The test is whether

the writing is decipherable.

Kell v Charmer (1856) 23 Beav 195:53 ER 76

Whiting v. Turner (1903) 89 LT 71

Re: Berger (1989) 1 ALL ER 591-

The Court of Appeal granted probate to documents written in Hebrew and known as

Zayah.

(d) Material used -

There is no restriction as to materials on which or with which a will may be written so

that any materials suffice provided that a permanent form of visual representation

results.

Valid wills have been made on calendars, back of cheques, on a small piece of cardboard,

and even on an egg-shell.

In the estate of Murray (1963) CLY 3621

Hodson v Barnes (1926) 43 TLR 71

4.2.2 The will must be signed

Section 4 of the Wills Act, Guyana Cap. 12:02 requires that will must

(i) be signed by the testator, or

(ii) by some other person, in his presence and by his direction.

NB. Not fatal if testator/testatrix him/herself does not sign.

5
(a) Signature by Testator

The important thing is not that the deceased signed his name but that whatever mark

he does put, is intended by him to represent his signature. This is so even if the

testator could sign normally but chooses to make a mark instead.

Baker v. Dening (1838) 8 Ad E94;112 ER 771

Hindmarsh v Charlton (1861) 8 HL Cas 160 at p. 167, Lord Campbell LC:

“… there must be either the name or some mark which is

intended to represent that name”.

(i) Signature need not consist of a name at all –

In addition to Hindmarsh v Charlton (1861) other cases were decided in similar vein.

A will signed with the words ‘your loving mother’ placed at the end of the document

was held to be sufficient. See -

Cook, In the Estate of (Deceased). Murison v. Cook and Another [1960] 1 All
ER 689 -

A will beginning, “I Emmie Cook…” and ending “Your loving

mother” was admitted to probate. The Judge was satisfied that the
concluding words were meant by the testatrix to represent the
testatrix’s name.

In the Goods of Redding (1850) 2 Rob Ecc 339; 163 ER 1338

In the Goods of Savory (1851) 15 Jur 1042

In the Goods of Jenkins (1863) 3 SW &Tr 93

In the Estate of Finn (1936) 52 TLR 153

Baker v Denning (1838) 8 Ad and E 94; 112 ER 771

6
 (ii) Testator must intend mark to be signature –

In the Goods of Chalcraft (1948) 1 ALL ER 700, Wilmer J at p 702- (part of name

intended as signature)

“… this lady is in an extremely weak condition, and was lying, if not quite on
her back, very nearly on her back, in a position in which it must have been
very difficult to write at all. I must ask myself the question whether on all the
facts. I can draw the inference that what she wrote was intended by her to be
the best she could do by way of writing her name”.

Re Colling (1972) 3 ALL ER 321

Weatherhill v Pearce (1995) 2 ALL ER 492

(ii) Testator is too weak to sign unaided-

Wilson v Beddard (1841) 12 Sim 28:59 ER 1041

In this case the testator signed the will with a mark before he died. He was so ill

that his hand had to be guided. The court held this to be a valid signature.

(b) Signature by ‘Some other person in his presence and by his direction’

Section 4 of the Wills Act, Guyana, Cap. 12:02 allows ‘some other person’ to sign the

testator’s will on his behalf, provided that it is signed by another person both in the

testator’s presence and under his direction.

In the Goods of Clark (1839) 2 Curt 329: 163 CR 428- person signing own name on

behalf of testator- will valid.

Smith v Harris (1845) Rd Ecc: 163 ER 1033- an attesting witness signing on behalf of

a testator – will valid.

7
 (i) Presence

- Physical presence - the requirement is that the testator should see or have the

opportunity of seeing the person signing on their behalf.

(ii) Direction

The testator’s physical and mental condition must be such that he could either object to or

assent to the signature made on his behalf.

4.2.3 Position of the signature

(a) Signature intended ‘to give effect to the will’

Section 4 provides that the will must be signed at its foot or end.

Section 5 of the Wills Act, Cap. 12:02 clarifies the meaning of the phrase “at the foot or

end thereof”.

Section 5 states, however, that the signature can be placed anywhere so long as it is

apparent on the face of the will that the testator intended to give effect by that

signature to the writing signed as his will. It ends with two prohibitions – a signature

can never operate to give effect to any part of the will:

(i) which is underneath or which follows the signature; or

(ii) which was inserted later in time after the signature was made

Re Bercovitz (1962) 1 WLR 332

Re Beadle (1974) 1 WLR 417

8
This section has been interpreted in the cases before the courts to mean that the signature

should be deemed valid if placed at or after, or following, or under, or beside or opposite

to, the end of the will so that it is apparent on the face of the will that the testator

intended to give effect by that signature to the writing signed as his will.

Wood v Smith (1992) 3 ALL ER 556 C.A (1993) CH 90. Scott L. J at p. 562

“… if the writing of the will and the appending of the signature are all one
operation, it does not matter whereabouts on the documents or when in the
course of writing the signature is appended”.

NB The will in Wood v Smith failed for lack of testamentary capacity.

Weatherhill v Pearce (1995) 2 ALL ER 492

Re Stalman (1931) 145 L.T. 339

The testator in this case had written her will on a simple sheet, and signed her

name at the top right hand corner of the will because there was no room at the

bottom of the page. The will was held to be invalid because the signature of the

testatrix appeared at the top of the page.

It should be noted that this decision was based on the interpretation of the statute which

only provided for signature ‘at the foot or end’ of the will. This decision would now be

different provided that the signature was intended ‘to give effect to the will’.

In b. Harris (1952) P. 319

Re Roberts (1934) P. 102

In b. Archer (1871) 25 L. T. 274

9
(b) the signature may be placed among the words of the attestation clause or

follow it, or placed after, or under the attestation clause, either with or without a

blank space intervening, or placed under or beside the names or one of the names of

the subscribing witnesses.

In b. Hornby (1946) P. 171

Weatherhill v Pearce (1995) 2 ALL ER 492

(c) a blank space may intervene between the concluding words of the will and the

signature.

(d) the signature may be placed on a page on which no part of the will is written,

even if there appears to be sufficient space, on or at the bottom of the preceding

side, or page, or some other position of the same paper on which the will is written.

In b. Ainsworth (1870) 23 L.T. 324; 2 P&D 151

(e) no signature can operate to give effect to any part of the will which is

underneath it or which follows it, (note exceptions discussed above) nor shall it give

effect to any disposition or direction inserted after the signature shall be made.

(f) signature where will comprises of several pages (discussed later)

10
4.2.4 The signature of the testator must be made or acknowledged in the presence

of witnesses

Section 4 states that the signature of the testator "shall be made or acknowledged by the

testator in the presence of two or more witnesses present at the same time ---".

(a) Signature made in joint presence of witnesses

To be present at signing, the witnesses must be capable of seeing the testator in the act of

writing his signature, although they never actually look at the signature. They need not

know that the document is a will as the witnessing is of the signature.

- old cases

The old cases involved careful consideration of whether it was physically possible for

the testator and witnesses to have seen each other had they looked.

Casson v Dade (1781) 28 ER 1010

Norton v Bazett (1856)

- later cases / current position -‘consciousness of the act done’

Hudson v Parker (1844) 1 Robb Ecc 14, 163 ER 948 -

(i) Mental presence:

The witness must be conscious of the act done.

Brown v Skirrow [1902] P3 at p5 Gorell Barnes J:

“You cannot be a witness to an act that you are unconscious of; otherwise
the thing might be done in a ball-room 100 feet long and with a number of
people in the intervening space. In my view, at the end of the transaction,

11
 the witness should be able to say with truth, ‘I know that this testator or
testatrix has signed this document”.

- The witnesses need not know that the testator is signing a will; nor need they

know what the testator is writing. What they must be conscious of is an act

of writing by the testator.

Smith v Smith (1866) 1 P & D 143

(ii) Physical Presence

The test is whether the witnesses could have seen the testator signing – in the sense of

having an opportunity to see – not whether they actually saw the signing.

Re Colling (1972) 1 WLR 1440

Brown v Skirrow (1902) P. 3

In the Estate of Gibson (1949) 2 ALL ER 90. Pearce J at pp. 91 – 92.

“--- for the purposes of the Act a witness means one who in regard to things
audible has the faculty of hearing and in regard to things visible has the
faculty of seeing. The signing of a will is a visible matter, and, therefore, I
think a will is not signed in the presence of a blind person, nor is he a
‘witness’ for the purposes of this section”

(b) Signature acknowledged in the presence of witnesses

If the signature on the will was not made in the simultaneous presence of two witnesses,

the signature may be subsequently acknowledged by the testator in their simultaneous

presence. There are three requisites for a valid acknowledgement:

(i) the will must already have been signed before acknowledgement

12
 (ii) at the time of acknowledgement the witnesses must see the signature

or have the opportunity of seeing it

(iii) the signature must be acknowledged by words or conduct

Keywords:

- already signed…” in order to be subsequently acknowledged.

- must see - - - or have the opportunity of seeing the signature

The witness must be able to see for himself that the signature exists:

Re Groffman (1969) 1 WLR 733

Hudson v Parker (1804) 1 Rob Ecc

In the Goods of Cunestan (1882) 7 PD 102

- Acknowledgement

Hudson v Parker (1844) 1 Ren Ecc 14; 163 ER 948. 952 – 953 Dr. Lushington:

“It is quite true that acknowledgement may be expressed in any words which
adequately convey that idea, if the signature be proved to have been then existent;
no particular form of expression is required either by the word ‘acknowledge’ or
by the exigency of the act to be done. It would be quite sufficient to say ‘That is
my will’, the signature being there, and seen at the time”.

Weatherhill v Pearce (1995) 2 ALL ER 492

Keigwin v Keigwin (1843) 3 Curt 607: 163 ER 841

In the Goods of Davies (1850) 2 Rob Ecc 337; 163 ER 1337

Daintree v Butcher (1888) 13 PD 102, CA. Cotton L J stated at p. 103.

“In my opinion, when the paper bearing the signature of the

testatrix was put before two persons who were asked by her or in
her presence, to sign as witnesses that was an acknowledgement

13
 of the signature by her. The signature being so placed that they
could see it, whether they actually ‘did see it or not, she was in
fact asking them to attest that signature as hers”.

5. Capacity to act as witnesses

Section 6 of the Wills Act, Guyana, Cap [Link]

“Everyone, save as hereinafter excepted, above the age of fourteen years,

competent to give evidence in any court of law in Guyana, shall be
competent and qualified to attest the execution of a will”.

Hudson v Parker (1844), Dr. Lushington:

“(witnesses) should see and be conscious of the act done, and be able to
prove it by their own evidence”.

6. Order of execution of a will

Section 4 lays down a chronological order of events which must be followed. There are

two successive steps:

(i) the testator must first complete signing or acknowledging his signature in

the simultaneous presence of at least two witnesses.

(ii) the witnesses must then sign their respective signatures.

Wyatt v Berry (1893) P. 5

Re Device (1951) 1 ALL ER 920

Re Colling (1972)

6.1 Signature by witnesses

(a) The witnesses must attest and subscribe

14
Section 4 requires that each witness must attest and subscribe the will in the presence of

the testator.

Re Colling (1972)

4.1 What constitutes signature by witnesses

The rules as to what constitutes the signature of a witness are the same as those for a

testator – the witness must make a mark intended to be his signature. Thus, the witness

does not need to use his name.

In the Goods of Sperling (1863) 3 SW & T 272; 164 ER 1279

(i) Personal Act

The witness must sign personally. Unlike the position with testators, another person

cannot sign on behalf on of the witness.

In the Estate of Bullock [1968] NI 96.

However, it is possible for the hand of the witness to be guided by another person.

In the Goods of Lewis (1861) 31 LJP 153. Cressewll J at p. 153.

(c) Position of Signature of witnesses

Section 4 does not specify where the witnesses should sign. The most sensible place is

close to the testator’s signature – alongside or just below – but the signature may be

anywhere on the will provided that it was intended to attest the testator’s operative

signature.

15
In the Goods of Braddock (1876) 1 PD 433. Hannen P stated (at pp. 434-5):

“The law does not require that the attestation should be in any particular
place, provided that the evidence satisfies the Court that the witnesses in
writing their names had the intention of attesting. But the attestation, if
not on the same sheet of paper as the signature of the testator, must be
on paper physically connected with that sheet”.

In the Goods of Hatton (1881) 6 PD 204

(d) Intention to attest

The witnesses must sign as witnesses that is, with the intention that their signatures

should be an attestation of the due execution of the will by the testator.

In the Estate of Bravda (1968) 2 ALL ER 217, CA

- The presumption is rebuttable

The presumption that a person who signed a will (other than the testator) did so as a

witness is rebuttable by evidence showing that the signer did not sign as a witness.

In the Goods of Sharman (1869) 1 P & D 662

Kitcat v King (1930) P 2006

6.2. Attachment – Connection of signature with pages of the will

The requirement that the will must be signed at the foot or end thereof, can lead to

difficulties where the will consists of two or more sheets of paper.

Re Little (1960) 1 ALL ER 387

In b. Horsford (1874) L.R. 3 P & D 211

16
Lewis v Lewis ((1908) P.1

R Long (1936) P. 166

In the goods of Tiernan (1942) IR 572

In the Goods of Mann (1942) 2 ALL ER 193 Langton J held that the envelope was part

of the will despite the absence of any form of attachment. He said at p. 195:

“…if an unattached paper is to be admitted at all, there is much to be said in

favour of an envelope which may reasonably be held to have a far closer
relationship to a document which it encloses, than a second or wholly
disconnected piece of paper. Envelopes are, by their nature designed to have
what may be described as a dependent and secondary existence rather than an
independent and primary life of their own”.

6.2.1. Envelope cases

Where a testator signs his name not on the will itself but on the envelope containing the

will, the court will admit such a will to probate if they are satisfied that the signatures

appearing on the envelope is intended to be the signature of the will and not put these

merely for identification purposes.

In b. Mann (1942) P. 146

In the estate of Bean (1944) P. 83

Re Beadle (1974) 1 ALL ER 493

7. NUMBER OF ATTESTING WITNESES

Section 4 of the Wills Act, Cap. 12:02 provides that the testator signs or acknowledges

his signature in the presence of two or more attesting witnesses.

Re Bravda (1968) 2 ALL ER 217

Fell v Bidolph (1875) LR 10 CP 701

17
8. ATTESTATION CLAUSE

Section 4, ends with the words ‘but no form of attestation shall be necessary’.

Although an attestation clause is not strictly essential, it is highly desirable. The purpose

of the clause is to recite that the will was executed in accordance with the required

formalities; hence it is normal to end the will with such a clause.

An example of an attestation clause is as follows:

Signed by the above named testator in our presence and attested by us in his

presence and in the presence of each other.

9. GIFT TO ATTESTING WITNESSES

Section 7 of Cap 12:02 provides that if a witness is also a beneficiary, he will lose his

benefit under the will. Section 7 provides:

“If anyone attests the execution of a will to whom, or to whose wife or

husband, any beneficial devise, legacy, estate, interest, gift, or appointment,
of or affecting any property (other than and except charges and directions
for the payment of any debt or debts), is thereby given or made, that devise,
or legacy, estate, interest, gift, or appointment, shall, so far only as
concerns the person attesting the execution of that will, or the wife or
husband of that person, or anyone claiming under that person, or wife or
husband, be null and void, but the execution of the will shall not be affected
thereby”.

Fell v Bidolph (1875) LR 10 CP 701

Jull v Jacobs (1876) 3 Ch D 703

Thorpe v Bestwick (188) 44 L.T 180
Re Marcus (1887) 57 L.T. 399
Aplin v Stone (1904) 1 Ch 543

18
Re Doland, Westerminister Bank Ltd v Phillips (1970) CH 167; (1969) 3 ALL ER 713

10. ANIMUS TESTANDI (TESTAMENTARY CAPACITY) (Worksheet 3)

TUTORIAL QUESTIONS

1. Joseph Perez wrote his will on one side of a sheet of paper ending with the words
‘signed by the above-named testator as his will’.

He then wrote his name at the head of the sheet. He then put the will in an
envelope on which he wrote “The will of Joseph Perez”. He next called in
Anasha and Charita, pointed to the envelope and said, “This is my will and I
want you to witness it”. At that moment the telephone in the room rang and
Joseph answered it, standing with his back to Anasha and Charita while they
wrote their names on the envelope. Joseph died a month ago.

Advise as to the validity of the will.

(b) Omar Hoppie has come to your chambers and informed you that he is the sole
executor of the will of one Ranjit Rampersaud, popularly known as “Bim” who
recently died at his home in Third Street, Alberttown.

He hands you Rampersaud’s will, in which he has left the bulk of his estate to his
neighbor, Padma Dubraj.

On examining the will, you observe that half-way on the second page of his three-
page will, he signs the will as “Bim”. On the line immediately below appears the
word, “witness” and two signatures – one of Padma Dubraj, the other of a close
friend, Lindon Isles, who predeceased the testator, Rampersaud.

Advise as to the validity of the will.

2. Flexton Campbell died leaving his widow Crystal as sole executrix of his will.
Crystal has consulted you for the purpose of having her husband’s will admitted
to probate, but upon inquiry, you established that while Campbellwas affixing his
signature to the will, one of the subscribing witnesses, Shanice, who was unaware
of the nature of the document she was signing, left the room to answer an urgent
call. Campbell nonetheless continued to complete his signature in the presence of
the other witness, Tamika. Tamika then subscribed the will in the presence of
Campbell .

19
 Campbell’s son, Rayon, is contesting the will on the grounds that it was not
validly executed by his father.

Advise the executrix Crystal .

3. The testatrix went to the shop of Mr. Sandy Read, at 225, New Road, Vreed-en-
Hoop, grocer and wine merchant, which was near her residence. Both Mr. Read
and Miss Mary Jeffrey, his assistant, were in the shop, the former being engaged
at the time with a commercial traveler, who was also in the ship and who stood
between Mr. Read and the testatrix. The shop, which was not large, had two
counters, and Mr. Read was at one counter. The testatrix went to Miss Jeffrey,
who was at the other counter, produced a printed form of a will, which,
apparently, had already been filled up, and asked Miss Jeffrey to see her sign it.
The testatrix signed it, and Miss Jeffrey, who saw the testatrix sign, then attested
it. The traveler having left shortly afterwards, Mr. Read was asked by Miss
Jeffrey to go round to the counter where the testatrix had signed, Miss Jeffrey
taking his place at the other counter. The testatrix then said to Mr. Read, “This is
my will. I have signed it. Miss Jeffrey has signed it. Will you sign it?” At this
time Miss Jeffrey was attending to a counter at the other counter, and did not see
Mr. Read sign the will.

Consider these facts taken from the case of Brown v Skirrow in 1902 and
discuss whether the will was validly executed.

Sandra Bart
November 2020

20
UNIVERSITY OF GUYANA
FACULTY OF SOCIAL SCIENCES
DEPARTMENT OF LAW

LAW 3103 – LAW OF SUCCESSION

Succession/September, 2020/SB

WORKSHEET 3 ANIMUS TESTANDI (TESTAMENTARY CAPACITY)

1. INTRODUCTION

There is a presumption that a document which appears on its face to be a will,

executed in accordance with the required formalities – was made with animus testandi.

This presumption is rebuttable, as was stated by Wilde J in:

Lister v Smith (1868) 3 Sw & Tr 282; 164 ER 1282, at 1285

“… if the fact is plainly and conclusively made out, that the

paper which appears to be the record of a testamentary act,
was in reality the offspring of a jest, or the result of a
contrivance to effect some collateral object, and never seriously
intended as a disposition of property, it is not reasonable that
the Court should turn it into an effective instrument”… There
must be animus testandi.”

Nichols v Nichols (1814) 2 Phill 180; 161 ER 1113.

2. ANIMUS TESTANDI - the intention to make a will (TESTAMENTARY

CAPACITY)

Animus testandi is a common law principle and to fulfill this requirement it must be

established that the testator had mental capacity, to make the will.

It means that-

a. the testator must understand the nature of the act in which he is engaged, that is,

1
making a will;

b. the testator must be free of vitiating mental disorder; and

c. the testator must exercise his/her genuine free choice in the making of the will

2.1 INTENTION

A testator must have the intention to make a will or what is known as animus testandi

when he executes the will, or that will, will be held to be invalid. More specifically, the

requirement is that the testator must have intended that his wishes should take effect on

his death.

Nichols v Nichols 1842 Phill 180

Milnes v Foden 1890 15 P. D. 105

Note that these wishes must be entirely the result of his own volition.

 Intention

Banks v Goodfellow (1870) LR 5 QB 549 per Cockburn CJ who said that a testator
“ought to be capable of making his will with an understanding of the nature of the
business in which he is engaged”

Milnes v Foden 1890 15 P. D. 105, Hannen P.:

The true principle … appears to be that if there is proof either in the paper itself or from

clear evidence … first, that it was the intention of the writer of the paper to convey the

benefits by the instrument which would be conveyed by it if considered as a will;

secondly, that death was the event that was to give effect to it, then whatever may be its

form it may be admitted to probate as testamentary. It is not necessary that the testator

would intend to perform or be aware that he has performed a testamentary act.

2
Slinn v Slinn 1890 15 P&D 156

Re Berger deceased (1989) Lord Mustill - intention or animus testandi is an intention to

make, ‘a revocable ambulatory disposition of the maker’s property which is to take

effect on death’.

 Wishes intended to take effect on death

The testator must make an expression of wishes in a document disposing of his property

which he intends to be carried out on his death. If he executes a document and there is no

evidence that it is intended to take effect on death, the document lacks testamentary

character and this cannot constitute a will.

Nichols v Nichols 1842 Phill 180

Re Berger deceased (1989) Lord Mustill.

Milnes v Foden 1890 15 P. D. 105

Hodson v Barnes (1926) 43 TLR 71

In the Estate of Knibbs [1962] 2 ALL ER 829

“in order to be a testamentary act, there must be a statement of the deceased’s

wishes for the disposition of his property which is not merely imparted to his
audience as a matter of information or interest, but is intended by him to
convey to that audience a request explicit or implicit that his wishes are acted
on”

Re Jones (1981) ALL ER 1

In the estate of Murray (1963) C.L.Y 3621

 Conditional Wills
This refers to the situation where a will is inoperative unless a condition satisfied

3
Testators sometimes make wills conditional on the occurrence of some specified event.
The basic rule is that such wills take effect only if the condition is fulfilled. If it is not,
there is no animus testandi.

In the Goods of Hugo (1877) 2 PD 73

Re Govier (1950) p. 237
In the Goods of Robinson (1870) LR 2 P & D 171
In the Goods of Morgan 1866 LR1 P&D 214

2.2 Mental Capacity

Lack of mental competence is not the same as mental disorder under legislation, though,

if there is evidence that a testator was a patient of a mental institution, it will mean that

any presumption of capacity that might have arisen in relation to a rational will, fails to

arise.

Banks v Goodfellow (1870) LR 5 QB 549 at 567 per Cockburn CJ:

“As to the testator’s capacity, he must, in the language of the law, have a
sound and disposing mind and memory. In other words, he ought to be
capable of making his will with an understanding of the nature of the
business in which he is engaged, a recollection of the property he means
to dispose of, of the persons who are the objects of his bounty, and the
manner in which it is to be distributed between them. It is not necessary
that he should view his will with the eye of a lawyer, and comprehend its
provisions in their legal form. It is sufficient if he has such a mind and
memory as will enable him to understand the elements of which it is
composed, and the disposition of his property in its simple forms”

Generally, in order to have mental capacity a testator must:

(i) know that he is making a will, that is, the effect of his wishes being carried out on
his death though it is not necessary that he should view his will with the eye of a

lawyer and comprehend its provisions in their legal form;

(ii) know the general extent of the property of his property;

4
 (iii) know the persons to whom he is leaving his property; and

(iii) the manner of distribution among them (be aware of the moral claims on his
estate which he ought to consider).

2.2.1 Assessing mental capacity

What has to be decided is whether, at the time of making the will, the testator had the

necessary testamentary capacity. In other words, did he have sufficient intelligence to

understand the testamentary act?

Marquess of Winchester Case 1598.

“It is not sufficient that the testator be of memory when he makes a will to answer

familiar and usual questions, but he ought to have a disposing memory, so that he is

able to make a disposition of his lands with understanding and reason.”

Waters v Waters (1848) – 64 ER, 263. Sir J. L Knight-Bruce VC

‘The questions will be these; whether … the testator had a mind undiseased
at the time, and of sufficient memory and understanding to know generally the
state of his property … if he is disposing of his property, to know generally the
state of his property, and what it consists of, and he ought to have knowledge,
memory and understanding of his relations in life’.

Recall the classic statement of the test of mental capacity as contained in

Banks v Goodfellow (1870) LR 5 QB 549 at 567 per Cockburn CJ.

“As to the testator’s capacity, … distributed between them.”

2.2.2 Sound mind

For a testator to have sound mind he must understand the nature of the act of making a

5
will and its effects. The testator should comprehend that in making a will he is disposing

of his property on death. Whether a testator satisfies this requirement is a question of fact

In the Estate of Park (1954) P. 112 C.A (1953) 2 ALL ER 945

Broughton v Knight (1873) LR 3 P & D 64. Sir J P Hannen, in explaining what

state the testator should have been in, said:

“sound mind covers the whole subject, but emphasis is laid upon two
particular functions of the mind, which must be sound in order to create
a capacity for making a will; there must be memory to recall the several
persons who may be fitting objects of the testator’s bounty, and an
understanding to comprehend their relationship to himself and their
claims upon him”

2.2.3 Sound memory

Sound memory requires that the testator should have ‘a recollection of the property he

means to dispose of”. In Banks v Goodfellow. Cockburn CJ does not indicate the detail

with which a testator should recollect his property.

Professor Mellows and cases suggest that it is general awareness that is required: the

testator need not recollect every item of his property.

Waters v Waters (1848) 2 De G & Sim 591; 64 ER 263, at 276 per Coleridge J:
‘a specific and accurate knowledge of every atom of his property’ was not
required of the testator but that ‘he ought to know generally the state of his
property and what it consists of’.

Re Beavney (1978) 1 WLR 770 at 773

2.2.4 Sound understanding

Sound understanding requires that the testator has an appreciation of the moral claims

6
upon him.

Recall:

Banks v Good-fellow, where Cockburn CJ said that the testator must recollect

‘the persons who are the objects of his bounty’.

Broughton v Knight (1873) L R 3 P & D 64 Sir J Hannen said that a testator must have

the memory to recall-

‘the several persons who may be fitting objects of the testator’s bounty
and an understanding to comprehend their relationship to himself and
their claims upon him’.

Harwood v Baker (1840) 3 Moo PC 282, 13 ER 117. Erskine J stated (at

p. 120) that the question before the court was whether the testator was:

“capable of recollecting who were his relatives, of understanding, their

respective claims upon his regard and bounty, and of deliberately forming

an intelligent purpose of excluding them from any share of his property”.

Broughton v Knight (1873). Sir J Hannen:

“he may disinherit - - - children and leave property to

strangers in order to gratify spite, or the charities to gratify
pride”.

In the Estate of Parks (1954) P. 112 C.A (1953) 2 ALL ER 945 (simple versus complex

wills)

Battan Singh v Amirchand (1945) AC 161

Moonan v Moonan 7 WIR 420

7
Developments post Banks v Goodfellow

Medical science has advanced considerably since Banks v Goodfellow was decided,

especially in the field of mental health. Lack of mental capacity is now regarded as

broadly arising from two grounds:

(a) firstly, failure of the mind to develop sufficiently to entertain the notion of

making a will, as for example in persons born with very limited mental

capacity; and

(b) secondly, where there is mental impairment, for example, dementia.

See: Professor Robin Jacoby, Professor of Old Age Psychiatry at Oxford

University at pp. 166 – 178 in Williams, Mortimer and Sunnucks on Executors,

Administrators and Probate, 18th ed., 2000.

Ewing v Bennett [2001] WLR 249

Wood v Smith [1992] 2 ALL ER 556, CA

Brown v Pourau [1995]1 NZLR 352

Moonan v Moonan 7 WIR 420

2.3 A Testator can be Capricious

There is no rule of law that a testator must make a sensible will. As long as the Banks v

Goodfellow test is satisfied a testator can make a will that is eccentric or lacking in

judgment.

Bird v Luckie (1850) 8 Hare 301; 68 ER 375, at p 37 - Knight Bruce VC:

“… no man is bound to make a will in such a manner as to deserve

8
 approbation from the prudent, the wise, or the good. A testator is
permitted to be capricious and improvident, and is, moreover, at liberty to
cancel the circum stances and the motives by which he had been
actuated in his dispositions. Many a testamentary provision may seem
to the world arbitrary, capricious and eccentric, for which the testator,
if he could be heard, might be able to answer most satisfactorily”.

Boughton v Knight (1873) at p 66. Hannen J:

“The law does not say that a man is incapacitated from making a will if he
proposes to make a disposition of his property moved by capricious,
frivolous, mean, or even bad motives.

Midway v Croft (1843) 3 Curt 671

2.4 Delusions
A will may be held to be invalid if it was made while the testator was suffering from a

delusion.

Dew v Clark (1826) 3 Add 79; 162 ER 410, Nicholl J described a delusion as follows (at

p. 414):

“Where the patient once conceives something extravagant to exist,

which has still no existence whatever but in his own heated imagination;
and wherever, at the same time, having once so conceived, he is
incapable of being, or at least of being permanently, reasoned out of that
conception; such a patient is said to be under a delusion…”

Re Nightingale (1974) 119 Sol Jo 1890

Compare and contrast with:

Banks v Goodfellow (1870). Cockburn CJ:

“… a degree or form of unsoundness which neither disturbs the

exercise of the faculties necessary for such an act, nor is capable of
influencing the result, ought not to take away the power of making a
will…”

9
2.5 Types of Delusions

There are a variety of delusions which can be found in the case law.

Waring v Waring (1848) 6 Moo PC 341, 13 ER 715

Smee v Smee (1879) 5 P & D 84,

Smith v Te’bbitt (1867) 1 P & D 398

Midway v Croft (1843) 3 Curt 671; 163 ER 863, at 866,

“the same acts which would constitute insanity in one eccentric individual
might not do so in another”.

It is important to note that however deluded a testator may be, he has capacity

provided that it can be established that-

- the delusion remained latent at the execution of the will.

- the testator is mentally competent to make a will; and

- the delusion had no direct bearing on the will or any connection with the
provisions of the will. To satisfy the court that capacity has been established it

must be shown that the provisions of the will are lucid and reasonable OR the will

was attested to by a medical doctor who is willing to testify as to the competence

of the testator at the time of execution.

3. WHEN MUST THE TESTATOR HAVE CAPACITY?

The general rule is that the testator must be mentally competent at the time when the will

is executed.

In the Estate of Walker (1912) 28 TLT 466,

Chambers and Yatman v Queen’s Proctor (1840) 2 Curt 415; 163 ER 457

10
3.1 The rule in Parker v Felgate (1883) 8 PD 171 (exception to the general rule)

The rule in Parker v Felgate is an important exception to the rule that the testator must

be mentally competent at the time when the will is executed.

Hannen P at p. 173

“If a person has given instructions to a solicitor to make a will, and the
solicitor prepares it, in accordance with those instructions, all that is
necessary to make it a good will, if executed by the testator, is that he
should be able to think thus far, ‘I gave my solicitor instructions to
prepare a will, making a certain disposition of my property, and I accept
the document which is put before me as carrying it out”.

Battan Singh v Amirchand (1948) AC 101. Lord Normand stated at p. 155:

“… the principle enunciated in Parker Felgate should be applied with the

greatest caution and reserve when the testator does not himself give
instructions to the solicitor who draws the will, but to a lay intermediary who
repeats them to the solicitor. The opportunities for error in transmission and
of misunderstanding and of deception in such a situation are obvious, and
the court ought to be strictly satisfied that there is no ground for suspicion,
and that the instructions given to the intermediary were
unambiguous and clearly understood, faithfully reported by him
and rightly apprehended by the solicitor, before making any
presumption in favour of validity”.

Perera v Perera [1901] AC 354 (The rule in Parker v Felgate was applied by the Privy

Council)

4. THE BURDEN OF PROOF

Where a question arises as to whether a person had the mental capacity to make a will at

the relevant time, the burden of proof lies on the person propounding the will to establish

that the will was valid.

Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, at 1090. Parke B stated the basic

principle to be that:

11
 “… the onus probandi lies in every case upon the party propounding a
Will; and he must satisfy the conscience of the Court that the
instrument so propounded is the last Will of a free and capable
Testator”.

In the estate of Fuld (No3) [1965] 3 All ER 776 per Scarman J

4.1 Presumptions and Rebuttals

The legal burden of proof must be satisfied on the standard of a balance of probabilities.

However, where one of the following rebuttable presumptions apply, the evidential

burden may, in some circumstances be on the person attacking the will to bring forward

the proof that the will is invalid.

4.1.1 Where the will is rational on its face

Where a will is rational on its face, there is a presumption that the testator has

testamentary capacity at the time the will was made. Where a party alleges that this is not

so the evidential burden of proof then shifts to the party opposing the will to rebut the

presumption by adducing evidence to the contrary. If such evidence is forthcoming, the

burden of proof shifts back to the propounder. The position is illustrated by:

Symes v Green (1859) 1 Sw&Tr 401: 164 ER 785

4.1.2 Where the will is irrational on its face

Where the will is irrational on the face the testator will be presumed to have lacked

testamentary capacity. Appropriate evidence can be adduced to rebut the presumption.

Austen v Graham (1854) 8 Moo PC 493; 14 ER 188.

12
4.1.3 Where the presumption of continuance applies

Under this presumption, the existence of a particular state of affairs in the past, justifies

an inference that it is continuing down until that moment in time into which the court is

enquiring.

Cartwright v Cartwright (1793) 1 Phill 90; 161 ER 923,

4.2 Will made while the testator is under the influence of drink or drugs

There is no presumption that a person addicted to drink or on drugs lacks testamentary

capacity. It may be possible to show that the will was made during a lucid interval.

Ayrey v Hill (1824) 2 Add 206; 162 ER 269

In the Estate of Heinke [1959] CLY 3449

Ghana v Ghana [2001] WTLR 205

5. EFFECT OF LACK OF MENTAL COMPETENCE

If a testator lacks mental competence to make a will, the effect is that the whole will fails.

The absence of animus testandi may be proved by parol evidence in relation to an

instrument which is on the face of it appears to be a valid and properly executed will.

If it is shown that the incapacity affected only part of the will, then the rest of the will

may be upheld, as seen in.

Re Bohrmann’s Estate [1938] 1 ALL ER 271; 158 L.T. 180, 82 Sol. Jo. 176

“It has been the practice in this court for many years to delete
from instruments of testamentary disposition anything which the
court is satisfied is not brought to the knowledge and approval of
the testator. I conceive that I am doing no more now in
declaring for this codicil without clause 2 than I should be doing

13
 in deleting from the codicil something which I believe was never
brought to his knowledge and approval as a sane, balanced
man (p. 282)”

6. KNOWLEDGE AND APPROVAL

Since a testator must have animus testandi to make a will, it follows that he must know

and approve of the contents of his will. This is because a will must be the result of the

testator’s own intelligence and volition.

Recall the rule in Parker v Felgate

Cleare v Cleare (1869) 1 P & D 655 at 657

“That he knew and approved of the contents is a proposition implied in

the assertion that a will was made by him. For if a man were to sign a
paper of the contents of which he knew nothing, it would be no will …
That the testator did know and approve of the contents of the alleged will
is therefore part of the burden of proof assumed by everyone who
propounds it as a will”.

As the testator must know and approve of the contents of his will, animus testandi

therefore can be vitiated by factors such as fraud, mistake, undue influence or

failure to understand fully the dispositions in the will.

d’Eye v Avery [2001] WTLR 227.

6.1 THE PRESUMPTION

Knowledge and approval is a general requirement and failure to prove it will result in

the failure of the whole or part of the will. Affirmative proof of the testator’s knowledge

and approval must be strong enough to satisfy the court in the particular circumstances.

The legal burden of proof is on the propounder of the will.

Barry Butlin (1838) 163 ER 223.

14
6.1.1 Dumb, blind or illiterate testator: will signed on a testator’s behalf

In order for a will to be properly executed, it must, among other things be signed by the

testator, or on the testator’s behalf, under his direction and in his presence.

Section 4 of the Wills Act, Cap. 12:02

“No will made in Guyana shall be valid unless it is in

writing and executed in manner hereinafter mentioned; that
is to say, it shall be signed at the foot or end thereof by the
testator, or by some other person in his presence, and by his
direction, and the signature shall be made or acknowledged
by the testator in the presence of two or more witnesses
present at the same time, and those witnesses shall attest
and shall subscribe the will in the presence of the testator,
but no form of attestation shall be necessary”.

Re Morris (1970) 1 ALL ER 1957

In the Goods of Geale (1864) SW &Ttl 431; 1674 ER 1342

Fincham v Edwards (1842) 3 Curt 63; 163 ER 656

Re Ticehurst (1973) Times 6th March

6.1.2 Suspicious circumstances

Affirmative proof of knowledge and approval is required whenever circumstances exist

which ‘excite the suspicions of the court’.

Tyrell v Painton [1894] P 151 and 157, CA, Lindley L J:

“… whenever such circumstances exist, and whatever their nature may

be, it is for those who propound the will to remove such suspicion, and
to prove affirmatively that the testator knew and approved of the
contents of the document, and it is only where this is done that the
onus is thrown on those who oppose the will to prove fraud or undue
influence, or whatever else they rely on to displace the case made for
proving the will”.

15
6.1.3 Will prepared by Beneficiary

Where a person who writes or prepares a will takes a substantial benefit under that will,

this will be regarded as a suspicious circumstance.

Barry v Butlin (1838) 2 Moo PC 480; 12 ER p 489 at 1090. Parke B:

“If a party wishes or prepares a Will, under which he takes a benefit that
is a circumstance that ought generally to excite the suspicion of the
Court, and calls upon it to be vigilant and jealous in examining the
evidence in support of the instrument, in favour of which it ought not to
pronounce unless the suspicion is removed, and it is judicially satisfied
that the paper propounded does express the true Will of the deceased”.

Wintle v Nye [1959] 1 ALL ER 552, HL per Viscount Simonds (at p. 557):

“It is not the law that in no circumstances can a solicitor or other

person who has prepared a will for a testator take a benefit under it.
But that fact creates a suspicion that must be removed by the person
propounding the will. In all cases the court must be vigilant and jealous.
The degree of suspicion will vary with the circumstances of the case. It
may be slight and easily dispelled. It may, on the other hand, be so
grave that it can hardly be removed. In the present case, the
circumstances were such as to impose on the respondent a heavy burden
as can well be imagined”.

Wintle v Nye turned on the issue whether the testatrix knew and approved

the contents of the will and codicil. It was not about undue influence or

fraud as neither was alleged.

Re Dabbs [2001] WTLR 527 (Wintle v Nye was followed)

Ewing v Bennett [2001] WTLR 249

Fulton v Andrew (1875) LR 7 HL

16
6.1.4 Benefit for a close relative of a beneficiary

The same suspicions arise where the benefit is not for the person who prepared the will

but for a close relative of the person. There is no presumption of knowledge and

approval and the propounder of the will has a heavy burden to discharge in showing that

the testator did not know and approve of the contents of the will.

Tyrrell v Painton (1894) P. 151

Thomas v Jones [1928] P 162,

6.1.5 Instructions through an intermediary

The testator may give instructions to his attorney-at-law for the preparation of his will

through an intermediary. Such a will may raise a query in the mind of the court as to the

reliability of the provisions in the will and whether the testator truly knew and approved

of them.

Battan Singh v Amirchand (1948) AC 161. The House of Lords said that:

‘the opportunities for error in transmission and the

misunderstanding and of deception in such a situation
are obvious, and the court ought to be strictly
satisfied that there is no ground for suspicion, and
that the instructions given to the intermediary were
unambiguous and clearly understood, faithfully
reported by him, and rightly apprehended by the
solicitor’.

Re Ticehurst (1973) The Times, 5 March,

Bankay v Sukdeo (1973) 24 WIR 9

Thomas v Thomas (1969) 20 WIR 56

Lucky v Tiwari (1965) 8 WIR 63

17
Sin Young Chin & Another v Kell and Another (J’ca) 12 WIR 429

Moonan v Moonan (1963) 7 WIR 420

Re Browne, Robinson v Sandford (1963) 5 WIR 505

6.2 Old and Infirm Clients

In the case of old and infirm clients where there is doubt as to a testator’s mental

capacity, it is advisable to arrange for the testator to be examined by an experienced

medical practitioner who should attest to the capacity of the person making the will.

See: Kenward v Adams (1975) The Times, 29 November, 1975, [1975] CLY 3591

Re Simpson (1977) 121 SJ 224

Buckenham v Dickinson [1977] 4 CL 661

6.3 Time of knowledge and approval

As a general rule, the point in time in which the testator must know and approve the

contents of the will is at the time when he executes the will.

Guardhouse v Blackburn (1866) 1 P+D 109 at 116

In the Estate of Wallace (1952) 2 TLR 925 (followed the principle laid down in Parker v

Felgate).

6.4 Burden of Proof

The legal burden of proof to establish knowledge and approval lies with the propounder

of the will.

Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089

18
Guardhouse v Blackburn (1866) LR P & D 109

Cleare v Cleare (1869)

7. MISTAKE

A testator may lack knowledge and approval of the whole or part of his will because of a

mistake on his part which may be due to his own inadvertence or to a mistake on the

part of the draftsman employed by him or it may be due to the fraud of another

person.

7.1 Mistake as to whole will

A testator will be held not to know and approve of a will, if he does not intend to exe

cute it as his will.

In the Goods of Hunt (1875) LR 3 P & D 250 at 252

Re Meyer [1908] P 353.

Guardian, Trust, and Executors Company of New Zealand v Inwood [1946]NZ LR 614

Re Brander (1952) 4 D.L.R 688

7.2 Mistake by testators as to part of will

A testator does not know and approve words which he mistakenly includes in his will,

intending to have written other words.

In the goods of Swords (1952) P 368

(mistake in codicil as to numbering of clauses in the will).

Re Phelan (1972) Fam 33

19
7.3 Mistake by draftsman as to part of the Will

If through a clerical error the draftsman inserts in the will, words contrary to the

testator’s instructions, the courts will hold that the testator did not know and approve of

these words unless the discrepancy is brought to his notice.

In the Goods of Oswald (1874) 3 P & D 162,

In the Goods of Boehm [1891] P 247

In Morrell v Morrell (1882) PD 68

Re Morris [1970] 1 ALL ER 1057

Re Reynette – James (1976) 1 WLR 161

7.4 Consequences of want of knowledge and approval

Where a testator lacks knowledge and approval because of a mistake as to the contents of

the will, there are two possible remedies – omission and rectification.

7.4.1 Omission

The court only has the power to omit words which the testator did not know and approve

leaving a blank space in the probate copy of the will, but the sense of the remainder of the

will must not be altered as a result. Thus omission is more likely in the case of

independent, severable parts of the will such as revocation clause.

Re Phelan (1971) 3 WLR 888.

Re Morris (1971) P 62

20
7.4.2 Rectification

The court does not have the power to rectify wills in Guyana, as this must be the subject

of legislation.

8. FRAUD AND UNDUE INFLUENCE

A testator must not only be mentally competent and know and approve of the contents of

the will but he must also exercise his free will, that is, the will must not be the result

either of undue influence or fraud of another.

8.1 Fraud

Fraud consists of intentionally misleading the testator, thereby affecting the making of his

will or its provisions. The testator must have been deceived, in other words, there must

be some false representation. A failed attempt to deceive a testator is irrelevant.

Allen v M’Pherson (1847) 1 HLC 191; 9 ER 727 per Lord Lyndhurst (at P. 735):

“There cannot be a stronger instance of fraud than a

false representation respecting the character of an
individual to a weak old man, for the purpose of
inducing him to revoke a bequest made in favour of the
person so calumniated”.

Wilkinson v Joughin (1866) LR 25 Eq 319,

Re Posner [1953] 1 ALL ER 1123

8.2 Undue Influence

Undue influence must be an influence exercised in relation to the will itself. It must be

of such a nature that the testator was not acting as a free agent but was acting under

21
undue control. Undue influence may take different forms.

Hall v Hall (1868) 1 P & D 481m at 482, per Wilde J: the test is whether the testator

was led or driven. He said:

“… pressure of whatever character, whether acting on the fears or the

hopes, if so exerted as to overpower the volition without convincing the
judgment, is a species of restraint under which no valid will can be
made. Importunity or threats, such as the testator has not the courage to
resist, moral command asserted and yielded for the sake of peace and
quiet, or of escaping from distress of mind or social discomfort, these, if
carried to a degree in which the free play of the testator’s judgment,
discretion or wishes is overborne, will constitute undue influence,
though no force is either used or threatened. In a word, a testator may
be led not driven; and his will must be the offspring of his own volition,
and not the record of someone else’s”.

Parfitt v Lawless (1872) 2 P & D 462, Lord Penzance (at pp. 469 – 70):

“A more material distinction in this: the influence which is

undue in the cases of gifts inter vivos is very different from that
which is required to set aside a will. In the case of gifts or other
transactions inter vivos it is considered by the Courts of Equity
that the natural influence which such relations as those in
question involve, exerted by those who possess it to obtain a
benefit for themselves, is an undue influence … The law
regarding wills is very different from this. The natural
influence of the parent or guardian over the child, or the
husband over the wife, or the attorney over the client, may
lawfully be exerted to obtain a will or legacy, so long as the
testator thoroughly understands what he is doing, and is a free
agent. There is nothing illegal in the parent or husband pressing
his claims on the child or wife, and obtaining a recognition of
those claims in a legacy, provided that the persuasion stops
short of coercion and that the volition of the testator, though biased
and impressed by
the relation in which he stands to the legatee, is not overborne
and subjected to the domination of another”.

8.3 Coercion

This is a situation where a person is persuaded, so that at the end, they dispose of their

22
property in the particular way they have been pressurized into leaving it.

Wingrove v Wingrove (1886) 11 PD 81 per Hannen P. He stressed that it was

insufficient to prove that a person has the power to coerce the testator – it had to be

shown that the power was executed.

As Hannen P pointed out at pp 82-83 coercion could take various forms, he said

“The coercion may of course be of different kinds, it may be in the grossest

form, such as actual confinement or violence, or a person in the last days or
hours of life may have become so weak and feeble, that a very little pressure
will be sufficient to bring about the desired result, and it may even be, that the sick
person may be induced, for quietness’ sake, to do anything. This would equally
be coercion, though not actual violence”.

Betts v Doughty (1879) 5 PD 26,

Hampson v Guy (1987) 64 LT 778, CA at 780. Kay L J stated

“… the amount of influence which would induce a person of

strong mind and in good health to make a will according to the
wishes of the persons who were attempting to induce4 such a
testator must be very greater than the amount of inducement
which would improperly influence the mind of a person who was
weak from mental infirmity and partly from ill-health…”

8.4 Presumption of undue influence

Undue influence cannot be presumed from the relationship between the parties.

Craig v Lamoureu [1920] AC 349, PC.

Mynn v Robinson (1828) 2 Hagg Ecc 169; 162 ER 823,

Re Handen (1959) CLYB 3448 The Times 30th June, 1959

23
8.5 Burden of Proof

Anyone who challenges a will on the grounds of fraud or undue influence must prove the

allegation – the onus is not on the propounder to disprove such allegations:

Boyse v Rossborough (1857) 6 HLC 2; [1857] EngR 299

Re Cutcliffe’s Estate [1959] P 6, CA. Hodson L J stated (at p. 21)

“… where pleas of undue influence and pleas of fraud are made, the
probability, at any rate if they are unsuccessfully made, is that the people who
make such charges and fail will be condemned in the costs not only of that
charge but of the whole action”

TUTORIAL QUESTIONS

1. In 2003 Ada, aged 70, made a will leaving all her property to her
husband Harold, and her two sons, David and Colin in three equal
shares. In 2010 she was admitted to a hospital as she was suffering
from terminal cancer. A week before she died, Ada was visited by
David who had prepared a new will following consultations with
Harold and Colin. Under the new will David was to receive half of
Ada’s estate, the residue to be shared equally by Harold and Colin.

When Ada was shown the will she was in a comatose state as the
result of the drugs administered to her. She read through the will and said, ‘And y
ou sure this is alright?’ David replied, ‘Well --- perhaps we should change one thi
ng’. He then altered the amount of the gift
to himself, increasing it from one-half to three-quarters of the estate. He then sho
wed the altered will to Ada who asked him to read it
through to her as she was too tired to do it herself. David read it out
twice in the presence of David’s wife, another patient and two nurses. When Ada
was about to sign the will one of the two nurses left to
attend to a patient. After Ada had signed the will in the presence of
David, his wife, the other nurses and the patient the will was signed
by the patient and the nurse as witnesses. When the nurse returned
after attending to the patient’s call, she was also asked to, and she did sign the will
as a witness. Ada died leaving an estate at $15M.

24
 You are consulted by Harold and Colin who now think that only the
1993 will should be admitted to probate.

Advise them.

2. In 1997, Michael Vincent, a wealthy businessman and confirmed

alcoholic joined a religious sect.

Six months after, Vincent swore off alcohol completely and he

credited his “salvation” as he saw it, to the working of the sect’s
religious leader, Brother Bertrand.

One of the rules of the Sect is that a person on being admitted must
render utter and total obedience to its leader and as a sign of total
submission, members are required at death to donate all their worldly possessions,
both real and personal, to the Sect.

In 2002, Vincent becomes gravely ill and is hospitalized. On his death bed and at t
he urging of Brother Bertrand, Vincent decides to make a new will. Vincent’s sol
icitor is called in, and a new will is made, whereby Vincent revokes his earlier wil
l and leaves all his property to the sect. The will is then signed by the testator and
subscribed by two (2) members of the Sect. Brother Bertrand is present in the tes
tator’s
hospital room during the execution.

Two (2) days later Vincent dies and his son the sole beneficiary under the earlier
will comes to you for advice as to the likelihood of
upsetting the later will.

Advise him.

Sandra Bart
November 2020

25
UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 3103 T OF LAW SUCCESSION

Succession/November, 2020/SB

WORKSHEET No. 4 REVOCATION

1. INTRODUCTION

Revocation of a will is literally the action of ‘calling back’, in the sense of rescinding

or annulling. One of the characteristics of a will is that it is ambulatory; it is of no effect

until the testator’s death. Nothing that the testator says or does can render his will

irrevocable during his life. The will can be revoked by the testator, wholly or partially

at any time before his death provided that he has capacity to do so. This is part of the

essential nature of a will.

2. REVOKING A WILL

There are in essence four methods of revoking a will.

A will may be revoked by:

(a) subsequent marriage of the testator- Involuntary Revocation

(b) later will or codicil- Voluntary Implied Revocation

(c) duly executed writing declaring an intention to revoke

1
 (attested document)- Voluntary Express Revocation

(d) destruction with intention to revoke.

See: Sections 18, 19 and 20 of the Wills Act 1837

3. Involuntary Revocation

3.1 Revocation by subsequent marriage (Involuntary Revocation)

Section 18 (1) of the Wills Act 1837 provides that subject to certain exceptions ‘a will

shall be revoked by the testator’s marriage’.

It is immaterial whether the party intends that the will be revoked by marriage.

What needs to be proved I that there was a valid marriage, that is, a marriage fully

effective for the purpose of law.

3.2 Void and Voidable Marriages

 A Void Marriage is regarded in law as never having subsisted and is treated as

never having taken place and is regarded as a complete nullity. It therefore does

not revoke a prior will.

Mette v Mette (1859) 1 Sw & Tr 416; 164 ER 792

Re Gray (1963) 197 SJ 156

Warter v Warter (1890) 15 PD 152

 Voidable marriage

A party to a voidable marriage is the lawful spouse of the other party. This is so

because avoidable marriage is regarded as a valid marriage when contracted and

subsists until a decree absolute of nullity is pronounced. If it is annulled it will be

2
regarded as having existed until the annulment. Hence, voidable marriages revoke prior

wills, even where the marriage is later annulled.

Re Roberts v Roberts [1978] 3 ALL ER 225 CA

Fowke v Fowke [1938] Ch 774

3.3 Exceptions to involuntary revocation by marriage

(a) Wills made in the exercise of a power of appointment.

Section 18 of the Wills Act 1837 provides that an appointment made by a will is not

revoked by the subsequent marriage of the testator if:

“…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.”

The underlying purpose of this exception is to allow the appointment by will to be

revoked by the testator’s subsequent marriage only in circumstances where the testator’s

new family might benefit under the gift in default of appointment.

Other Exceptions (other jurisdictions)

 Wills made in contemplation of marriage.

 Marriage in extremis.
Consider the effect of a marriage made in articulo mortis-
Section 66 of the Marriage Act of Guyana Cap 45:01(Clinical marriages)

3
4. Voluntary Revocation

4.1 REVOCATION UNDER SECTION 20 OF THE WILLS ACT 1837

Apart from revocation by marriage (involuntary) which is governed by s.18 of the Wills

Act, 1837, a will or codicil can be revoked only by one of the three methods contained in

s.20 of the Wills Act 1837.

Section 20. No will to be revoked otherwise than as aforesaid or by another

will or codicil or by destruction thereof. –

“No will or codicil, or any part thereof, shall be revoked otherwise than as
aforesaid, or by another will or codicil executed in manner hereinbefore
required, or by some writing declaring an intention to revoke the same and
executed in the manner in which a will is hereinafter required to be executed,
or by the 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.”

4.1.1 Voluntary Revocation and Intention to Revoke

Voluntary revocation such as express revocation requires an intention to revoke on the

part of the testator.

In the Estate of Wayland [1951] 2 ALL ER 1041

Re Thompson Hoo Seung 1963 6 WIR 220

Lowthorpe – Lutwidge v Lowthorpe – Lutwidge (1935) P. 151

Re Phelan 1972 Fam 33

Collins v Ellstone 1893 P 1

4
5. Revocation ‘by later will or codicil’

Under Section 20 of the Wills Act, 1837-

No will or codicil, or any part thereof, shall be revoked

i. otherwise than as aforesaid, (by marriage) or

ii. by another will or codicil executed in manner hereinbefore required, or

iii. by some writing declaring an intention to revoke the same and executed in

the manner in which a will is hereinafter required to be executed

5.1. Express Revocation by later will or codicil

Express revocation of a will by another will or codicil must be done by clear words of

revocation.

Merely describing a document as “the last will and testament” does not amount to an

express revocation

Cutto v Gilbert (1854) 9 Moo PC 131; 14 ER 247

5.1.1. Express Revocation Clause

Most professionally drawn wills carry the words:

“I hereby revoke all wills, codicils and testamentary dispositions previously made by me

and hereby declare this to be my last will’

5.1.2. “last” will

For the purpose of express revocation, it is not sufficient for the testator to state that the

will is his ‘last’ or ‘only’ will. There must be some clear statement of revocation.

Cutto v Gilbert (1854) 9 Moo PC 131; 14 ER 247

5
5.1.3. Operation and scope of a revocation clause

The operation and scope of a revocation clause will depend on its construction. As a

general rule an unambiguous general revocation clause will normally revoke all prior

testamentary dispositions since it is presumed that the testator had knowledge and

approval of that clause.

Lowthorpe – Lutwidge v Lowthorpe – Lutwidge (1935) P. 151, at 156Langton J:

“It is a heavy burden upon a plaintiff who comes into his Court to say: I agree
that the testator was in every way fit to make a will, I agree that the will which
he has made is perfectly clear and unambiguous in its terms. I agree that it
contains a revocatory clause in simple words: nevertheless I say that he did
not really intend to revoke the earlier bequest in earlier wills. Quite obviously
the burden must be heavy upon anybody who comes to assert a proposition of
that kind.”

Sotheran v Denning (1881) 20 Ch D 99, CA:

Kitcat v King (1930) P 266

6. Presumption

Where there is a revocation clause in a will or codicil, it raises the presumption that

the testator intended to revoke his earlier will or wills.

This presumption is rebuttable by evidence of a contrary intention, but the onus of proof

required to displace this presumption is heavy.

Lowthorpe – Lutwidge v Lowthorpe – Lutwidge (1935) P. 151.

The presumption may be rebutted in the following cases:

(i) where a contrary intention can be proved or shown.

(ii) where the revocation clause was inserted in the will by mistake.

(iii) where the doctrine of conditional revocation applies.

6
6.1 Contrary Intention

A revocation clause will not be operative if a contrary intention can be established from

the will or surrounding circumstances.

In the Estate of Wayland [1951] 2 ALL ER 1041

Gladstone v Tempest (1840) 2 Curt 650; 163 ER 538 at p. 540, Jenner J:

“… it has been over and over again laid down that probate of a
paper may be granted of a date prior to a will with a revocatory
clause, provided the Court is satisfied that it was not the
deceased’s intention to revoke that particular legacy or benefit”.

6.2 Words of revocation included by mistake

If a revocation clause was included by mistake, and it can be shown that the testator did

not know and approve of it, the clause will not be effective.

Re: Phelan (1972) Fam 33

In the goods of Brown (1942) 2 ALL ER 176

Collins v Ellstone (1893) P 1

6.3 Conditional Revocation

A revocation clause will not be effective

(i) if it was contained in a conditional will that failed to take effect; or

(ii) where the doctrine of conditional revocation applies.

Sandra Bart

December, 2020

7
UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 3103 T OF LAW SUCCESSION

Succession/January, 2021/SB

WORKSHEET No. 4 REVOCATION (continued)

7. Implied Revocation by later will or codicil

Even if a will does not have a revocation clause which expressly revokes prior

dispositions, a later validly executed will, will impliedly do so to the extent of any

inconsistency: the later in time prevails.

See s 20 of the Wills Act

Lemage v Goodban (1865) 1 P & D 7, Wilde J stated (at pp. 62-3)

“The will of a man is the aggregate of his testamentary intentions, so far

as they are manifested in writing, duly executed according to the statute
… And so the court has been in the habit of admitting to probate, such,
and as many papers (all properly executed), as are necessary to effect
the testator’s full wishes, and of solving the question of revocation, by
considering not what papers have been apparently superseded by the act
of executing others, but what dispositions can be collected from the
language of all the papers, that the testator designed to revoke or to
retain”.

7.1. The following situations may arise here there are two or more testamentary

instruments and no revocation clause:

1
 i. The two instruments are totally inconsistent, in which case the whole of the
earlier Will, will be entirely revoked.

ii. The two instruments are partially inconsistent, in which case the later

instrument is completely effective and the earlier one only effective to

the extent that the latter is not consistent.

iii. The second instrument repeats the whole of the earlier/first will, in which

case the first will is revoked by implication.

iv. The two instruments are not mutually inconsistent, in which case both

Wills must be read together (no revocation)

Re Wyatt 1952 1 AER 1030

In B Fenwick 1867 LR P&D 319

7.1.1 Total failure of an earlier will.

This may happen where two instruments are totally inconsistent, in which case the whole

of the earlier Will, will be entirely revoked.

Dempsey v Lawson (1877) 2 PD 98

Re Hawksley’s Settlement [1934] Ch 384

Thorn v Dickens [1906] WN 54

In The Estate of Wayland (1951) 2 ALL ER 1041

Re Thompson Hoo Seung (1963) 6 WIR 220

Lamothe v Lamothe and Others ChD 15-Jun-2006 (, [2006] EWHC 1387 (Ch))

Cadell v Wilcocks [1898] P 21.

Broadway v Fernandes [2007] EWHC 684, [2007] All ER (D) 485 (Mar)

2
7.1.2 Partial failure of an earlier will

This may happen where two instruments are partially inconsistent, in which case the

later instrument is completely effective and the earlier one effective only to the

extent that the latter is not inconsistent.

Lemage v Goodban (1865) 1 P & D 7, Wilde J (at pp. 62-3)

Re Murray (1956) 1 WLR 605. Per Harmon, J.

Townsend v Moore (1905) P. 66

Dempsey v Lawson (1877) LR 2 P & D 98

In the Estate of Bryan 1907 P 125

7.1.3 Revocation of the first will by implication where the second instrument
repeats the whole of the earlier/first will.

Cadell v Wilcocks 1891 P 21

Re Hawksley’s Settlement 1934 Ch 384

Re Fawcett's Estate [1941] P 85, [1941] 2 All ER 341.

7.1.4. No Revocation where the two instruments are not mutually inconsistent. Both
Wills must be read together.

In B Fenwick 1867 LR P&D 319

Re Griffith's Goods (1872) LR 2 P & D 457

Re Wyatt 1952 1 AER 1030

8. The Rule in Hearle v Hicks

3
Where a will is followed by a codicil, the rule that the later testamentary instrument

impliedly revokes the earlier to the extent of any inconsistency applies with less

force.

Doe dem Hearle v Hicks (1832) 1 CL & Fin 10; 6 ER 823. Per Tindal LCJ stated (at p.

825):

“If such devise in the will is clear, it is incumbent on those who

contend it is not to take effect by reason of a revocation in the codicil
to show that the intention to revoke is equally clear and free from
doubt as the original intention to devise”.

Re Stoodley [1915] 2 Ch 295:

9. Proof of Revocation

Revocation by another will or codicil, whether express or implied, occurs when that will

or codicil is executed.

Revocation occurs in such circumstances even though the later instrument is lost or

has been destroyed.

The contents of the later instrument must be proven, to show that it expressly or

impliedly revoked earlier dispositions – and that it was validly executed.

Wood v Wood (1867) 1 P & D 309

Re Howard (1944) p. 39

9.1 Revocation of the revoking instrument

Such a situation would not affect the position: the original Will remains revoked.

In The Goods of Hodgkinson [1893] P 339, CA.

4
9.2 More than one instrument of the same date or undated

Townsend v Moore (1906) P 66

Re Howard (1944) P 39

10. REVOCATION ‘BY DULY EXECUTED WRITING

Under s.20 of the Wills Act 1837, a will or codicil can be revoked ‘by some writing

declaring an intention to revoke the same’ and executed in the manner required for a

will.

The Goods of Durance (1872) 2 P & D 406

Re Spracklan’s Estate [1938] 2 ALL ER 345, CA

Ford v De Pontes (1861) 30 Beav 572:

In the goods of Gosling (1886) 11 P.D.79

10.1 Effective date of revocation

The will is revoked as soon as ‘some writing’ that satisfies s.20 comes into
existence, that is, when the letter is duly executed.

Re Spracklan’s Estate [1938] 2 ALL ER 345, CA

11. REVOCATION BY DESTRUCTION

Under s.20 of the Wills Act 1837, the whole or any part of a will or codicil may be

revoked:

‘by the 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’.

5
Cheese v. Lovejoy (1877) 2 PD 251, CA per James LJ in who said:

“all the destroying in the world without intention will not revoke a will,
nor all the intention in the world without destroying; there must be the
two”.

11.1 The Physical Act of Destruction (“burning, tearing or otherwise

destroying.”)

There must be an actual and not merely a symbolic act of burning, tearing, or otherwise

destroying of the will or codicil.

Doe d Reed v. Harris (1837) 6 A&E 209: 112ER 79

Stephens v Taprell (1840) 2 Curt 458; 163 ER 473, per Jenner J (at p. 476):

“---it could not have been the intention of the Legislature that the striking
the will through with a pen should be a mode of revocation.
‘Cancellation’ and ‘revocation’ are different terms, though sometimes
confounded, cancellation being an equivocal act … if they did consider
cancellation to be a mode of revocation, they would have taken care to
render their mentioning clear”.

Re Adams (1990) 2 ALL ER 97.

Cheese v Lovejoy (1877) L.R 2 P & D 78, James L. J (mentioned above)

The Goods of Brewster (1859) L.J.P 69

11.2 Extent of Destruction

The requirement of an actual physical act of destruction does not mean that the

whole will should be destroyed; it is sufficient ‘if the essence of the instrument, in

other words, a part necessary to its validity is destroyed.

6
Hobbs v Knight (1838) 1 Curt 768; 163 ER 267, at 270

Stephens v Taprell (1840) 2 Curt 458; 163 ER, 473

In the Goods of Godfrey (1893) 69 LT 22

Re Morton’s Goods (1887) 12 PD 141

11.3 Destruction affecting the signature of the witness, but not the testator’s

In the Goods of Wheeler (1879) 49 LJ P 29:

11.4 What is the position where the testator fails to complete what he intended to

do by way of destruction?

Doe d Perkes v Perkes (1820) 3 B & A 489; 489; 106 ER 740, per Best J (at p. 742).

“The real question in these cases is, whether the act be complete. If the
testator here, after tearing it twice through, had thrown the fragments on
the ground, it might have been properly considered, that he intended to go
no further, and that the cancellation was complete; but here there is
evidence that he intended to go further, and that he was only stopped from
proceeding by an appeal made to his compassion by the person who was one
of the objects of his bounty”.

Elms v Elms (1858) 1 Sw & Tr 155; 164 ER 672

11.5 Partial revocation

A will need not be totally revoked by destruction: partial revocation can occur

when a non-essential part of the will has been destroyed. But partial revocation can

occur only if the will is intelligible and can operate without the destroyed part.

The Estate of Nunn [1936] 1 ALL ER 555

In the Goods of Woodward (1871) 2 P & D 206

7
11.6 Destruction: By the “testator by some person in his presence and by his

direction.”

Section 20 ‘by the testator or ‘some person in his presence and by his direction’.

11.6.1 ‘Some person’

11.6.2 Presence

The Estate of Kremer (1965) 110 SJ 18

The Goods of Dadds (1857) Deane 290; 164 ER 579

11.6.3 Direction

Not only must the will be destroyed by some person in the testator’s presence, but also

‘by his direction’.

Gill v Gill (1909) P. 157,

11.7 Intention to revoke (Animus Revocandi)

Section 20 ‘with the intention of revoking the same’.

As James L. J. said in Cheese v Lovejoy:

“All the destroying in the world without the intention will not revoke
a will, nor all the intention in the world without destroying: there
must be the two.”

11.7.1 Accident

8
Re Booth [1926] P 118

11.7.2 Mistake

Giles v Warren (1872) 2 P & D 401, per Lord Penzance (at pp. 402-3):

“There can be no intention to revoke a will, if a person destroys the

paper under the idea, whether right or wrong, that is not a valid
will. Revocation is a term applicable to the case of a person
cancelling or destroying a document which he had before legally
made. He does not revoke it if he does not treat it as valid at the
time when he sets about to destroy it”,

Re Jones (1976) CH 200 at 205

Re Aynsley (1973) 1 CH 172

12. Presumptions

There are two important rebuttable presumptions concerning revocation by destruction

and these relate to:

(a) mutilated will

(b) lost wills

12.1 Will Mutilated at death

In the Goods of Lewis (1858) 1 Sw & Tr 31: 164 ER 615

In the Goods of Brassington 1902 P1

Harris v Berrall (1858) 1 Sw & Tr 153; 164 ER 671.

Bell v Fothergill (1870) 2 P D 148

9
12.2 Lost Wills

Allan v Morrison [1900] A C 604

Olga Appiah and Others v Winifred Hookumchand and Another (1972) 18 WIR 244

Chana v Chana (2001) WTLR 227

D’ye v Avery [2001] WTLR 227

12.3 Part of will missing

In the Goods of Gullan (1885) 1 Sw & Tr 23; 164 ER 612

12.4 The presumption may be rebutted by evidence to the contrary

In Re Webb [1964] 2 ALL ER 91

Re Sargeant (1975) 27 WIR 40

Lefebvre v Major (1930) 2 DLR 530

12.5 Insanity of Testator

If a will is missing at the testator’s death, and it is shown that he became insane

after executing it (and remained so until his death), the presumption will not apply.

Sprigge v Sprigge (1868) 1 P & D 608

12.6 Proof of contents of a missing will

Sugden v Lord St Leonards (1876) 1 PD 154

Re Sargeant (1975) 27 WIR 40

10
13. Mental Capacity and intention to Revoke

Whatever method of revocation is used under s. 20, the testator must have the mental

capacity to revoke.

 The degree of mental capacity required

Re Sabatini (1969) 114 SJ 35-

The Judge in this case thought that as a general rule, a testator must have the same
standard of mind and memory, and the same degree of understanding, when destroying
his will, as when making it.

Banks v Goodfellow (1870) LR 5 QB 549

Re Park 1953 2 AER 1411.

13.1 Destruction whilst the testator is of unsound mind or under the influence of

drink/drugs

Brunt v Brunt (1873) 3 P & D 37

In The Goods of Brassington (1902) P 1.

13.2 If the testator revokes a will, does he thereby revoke a codicil to that will?

The Goods of Savage (1870) 2 P & D 78 at p 80 per Lord Penzance,

“…. When a testator has once executed a testamentary paper that paper will
remain in force unless revoked in the particular manner named in the
statute.”

In The goods of Bleckley (1883) 8 P&D 169

14. CONDITIONAL REVOCATION/Dependent Relative Revocation

11
In order to revoke a will, the testator must have the intention to revoke it, or the animus

revocandi.

Re Jones (1976) Ch 200

In the Estate of Southerden [1925] P. 177, C.A.

For the rules on conditional revocation to operate there must be clear evidence that the

intention of the testator was only to revoke conditionally.

14.1 Fresh Will Cases

The origins of the rule on conditional revocation are to be found in cases where the

testator revoked a prior will intending to replace it with another will.

Onyons v Tryers (1716) Gilb Ch 130, 1 P Wms 343 sub nom Onions v Tyrer.

15.1 Failure to create another will

Re Jones (1976) CH 200

Dixon v Treasury Solicitor [1905] P 42

In Dancer v Crabb (1873) 3 P & D 98; [1861-73] All ER Rep 692, 28 LT

914

15.2 Invalid Execution

In the Estate of Botting, Botting v Botting [1951] 2 ALL ER 997

15.3 Ineffective will or disposition

Re Finnemore (1992) 1 ALL ER 800

In the Goods of Hope Brown (1942) P 136

12
15.4 Failure to revive

In Powell v Powell (1866) 1 P & D 209

Re Bridgewater [1965] 1 ALL ER 717

16. Mistaken belief cases

In Campbell v French (1797) 2 Ves 321; 30 ER 1033

In the Estate of Southerden [1925] P 177 CA , per Atkin LJ (at pp. 185-6):

Cases of conditional revocation and dependent revocation are mostly cases

where the testator has supposed that if he destroyed his will his property
would pass under some other document. But the condition is not
necessarily limited to the existence of some other document. The revocation
may be conditional on the existence of future existence of some fact …
when the testator destroyed his will in the presence of his wife he did it on
condition that she would take the whole of the property. The condition was
not fulfilled, and therefore the revocation was not operative.

Re Feis [1964] Ch 106

In Re Churchill [1917] 1 Ch 206

17. Burden of proof

When a will that is otherwise valid comes to be proved and it is alleged that it has been

revoked, the legal burden of proof of revocation lies on the party alleging the revocation.

As Langton J said in:

Lowthorpe – Lutwidge v Lowthorpe – Lutwidge (1935) P. 151; (1935) AER 338:

“It is a heavy burden upon a plaintiff who comes into his Court to say:

I agree that the testator was in every way fit to make a will, I agree that the
will which he has made is perfectly clear and unambiguous in its terms. I
agree that it contains a revocatory clause in simple words: nevertheless I say
that he did not really intend to revoke the earlier bequest in earlier wills.

13
 Quite obviously the burden must be heavy upon anybody who comes to assert
a proposition of that kind. (p. 156)”.

TUTORIAL QUESTIONS

1. In 1990, Karla made a will leaving her entire estate to her son, John. In 2000,
after an argument with John, Karla telephoned her attorney-at-law stating that she
wished to make a new will leaving everything to the Poinsettia Home for the
Handicapped.

Karla’s attorney drew up a new will in accordance with these instructions and it
was arranged that Karla attend at the attorney’s office to execute the will which
was to be witnessed by a secretary and an articled clerk.

Before leaving to execute the will, Karla tore up the 1990 will, threw it into the
back of her writing desk and said to her housekeeper, “As my will of 1990 is to be
revoked, I may as well destroy it”. When Karla arrived at her attorney’s office, he
was engaged with another client and Karla was ushered into the secretary’s office
to execute the will.

The secretary said to Karla, “I am expecting a telephone call, Karla, and so I had
better attest now”, whereupon the secretary signed the will. While Karla was in
the middle of signing her name, the telephone rang and the secretary left the room
to answer the telephone in an adjacent office which was separated by a glass
partition. Karla completed her signature and the articled clerk then signed as
well. The articled clerk then left the room.

When the secretary returned, Karla pointed to her signature and said, “What a pity
that the telephone interrupted the signing!”. The secretary said, “there is no
problem as I had already signed my name”.

Advise as to the documents, if any, which can be admitted to probate.

2. By his will dated November 4, 1990, Peter, who was estranged from his wife,
Edith, gave all of his property ‘to my fiancée, Mary-Jane. On May 22, 1995,
upon obtaining a divorce from Edith, the testator married Mary-Jane.

14
 Several months after his marriage to Mary-Jane , a heated argument took place
between the couple. In a fit of anger, Mary-Jane snatched Peter’s will from the
cabinet where he kept all of his current files and papers and struck a pen through
the pages of the will, marking the word ‘revoked’ on each sheet of the three-page
will.

Peter then grabbed the will from Mary-Jane and shouted in a rage, “Let me finish
the job for you!” and with that he tore the will halfway through, dumped it into a
nearby wastepaper basket and stalked out of the room. Mary-Jane retrieved the
half-torn will from the basket, scotch-taped it together, and replaced it in the
cabinet.

A year after this incident, the testator dies, and Mary-Jane comes to you for
advice as to the validity of her husband’s will.

Advise her.

Sandra Bart

January, 2021

15
UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 3103 THE LAW OF SUCCESSION

Succession/January, 2021/SB

WORKSHEET No. 5 ALTERATIONS

1. INTRODUCTION

Alteration refers to the situation where the words of a will are obliterated or altered or

erased or interlineations are made, and the question arises as to what is the effect of such

alterations.

Note the distinction between Alteration and Revocation.

Alteration is not included as one of the methods of revocation under the Wills Act 1837.

However, the consequences of alteration will sometimes be the same as that of

revocation.

Re Adams (deceased) (1990) 2 AER 97

2. ALTERATIONS

Section 21 of the Wills Act, 1837:

“No obliteration, interlineations 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
1
 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”

2.1 General Rule

The basic rule is that alterations are not valid if they are made after execution. The words

of the will are fixed at execution, and anything added afterwards will not have been

executed and therefore cannot be admitted to probate.

3. ALTERATIONS MADE PRIOR TO EXECUTION OF WILL

An alteration made before the will is executed is valid so long as it is final and not

deliberative and provided that it was intended by the testator to form part of his will when

it was executed.

In practice, it is advisable for alterations to be signed and attested because there is a

presumption that, in altered wills, an unattested alteration was made after the execution of

the will.

3.1 Presumption as to time of execution

There is a rebuttable presumption that an unattested alteration, that is, one which has

not itself been executed, was made after the execution of the will or codicil in which it

is contained.

Cooper v Brockett (1846) 4 Moo PC 419: 13 ER 365

In the Goods of Sykes (1873) L.R 3P&D 26 at 27-28

In the Goods of Adamson (1875) L.R. 3 P. & D. 253

2
3.2 Rebuttal of presumption by intrinsic or extrinsic evidence, or a combination

of the two

-Extrinsic evidence, such as the statements of the witnesses as to the circumstances of

the execution, as well as

-Intrinsic evidence of the contents of the will itself may be admitted in disputed cases.

Grenville v Tylee (1851) 7 Moo PC 320; 13 ER 904

(a) Intrinsic evidence

Intrinsic evidence is evidence contained in the instrument itself.

Birch v Birch (1848) 1 Rob Ecc 675; 163 ER 1175

In the Goods of Cadge (1868) 1 P & D 543

(b) Extrinsic evidence

Extrinsic evidence is evidence from outside of the instrument.

Keigwin v Keigwin (1843) 3 Court 607: 163 ER 841

In the Goods of Sykes (1873) 28 L T 142

Re White (dec’d) (1990) 3 ALL ER 1

Re Hay, Kerr v Stinnear [1994] 1 Ch 317 at 321 per Buckley J –

“The will in its amended form could not have been admitted to probate
as an original will because it had not been signed by the testator as
required by s.9. Of the 1837 Act, since the testator’s signature to the
original will in 1981 did not suffice to make the amended will made in
1984, a will ‘signed by the testator’ because the testator’s signature in
1981 was not part of the process of making an entirely new will in
1984…”

3
4. Alterations made after execution of the will - Duly Executed

Section 21 of the Wills Act 1837 provides:

“No 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…”

The effect of s. 21 is that alterations made after the execution of a will, shall only be valid

where –

(i) the alteration itself has been duly executed, ie executed in the same
manner as a will

“unless such alteration shall be executed in like manner as

hereinbefore is required for the execution of the will…” ; or

(ii) the manner in which the alteration was made has been such that certain words
or the effect or certain parts of the will are no longer apparent

“No 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…”.

4.1. What constitutes due execution of an alteration?

The alteration must be signed and attested in the manner required by s. 4 of the Wills Act,

Cap. 12:02, but s. 21 goes further and specifically directs that the signature of the testator

and the witnesses must 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’.

In the Goods of Blewitt (1880) 3 PB 116

Re Dewell (1853) 17 Jur 1130

4
In the Goods of Shearn (1880) 50 LT 760

Re White (deceased)Barker v Gribble and another [1990] 3 ALL ER 1

4.2 Where the testator alone signs the alteration

Where this occurs, section 21 is not satisfied. However, if the testator later acknowledges

his signature to the witnesses who then attest that signature, section 21 would be satisfied.

Re Shearn (1880) 50 LT 760

Re Dewell (1853) 17 Jur 1130

4.3 Duly executed memorandum

Section 21 - a duly executed memorandum that refers to the alteration will suffice.

In the Goods of Treeby (1875) P & D 242

4.4 Medium by which the alteration is to be made

Hawkes v Hawkes (1828) 1 Hagg Ecc 321: 162 ER 599

In the Goods of Bellaney (1866) 14 WR 501

5. Alterations made after execution of the will – NOT Duly Executed

If a testator wishes to alter his/her will by deleting certain words or clauses s/he may
achieve this end by obliterating them completely from his will.

In the Goods of Hamer (1944) Re Hamer's Estate (1943) 113 LJP 31)

5
5.1. Words or part of will not apparent – revocation of part by obliteration

An alteration after execution which makes any part of the will ‘not apparent’ therefore

revokes that part if the testator has an intention to revoke it, providing that it can be

shown that the testator intended by obliterating that part of the will to render it

ineffective.

5.1.2. The meaning of ‘apparent’

In general, “apparent” means apparent on the face of the instrument in the condition in
which it was left by the testator.

In the Goods of Horsford (1874) LR 3 P&D 211, per Sir J P Hannen –

“It has not been the practice to adopt any means of ascertaining
what the words attempted to be obliterated were; other than by mere
inspection by glasses. Chemical agents have not been resorted to in
order to remove any portion of the obscuring ink, and I do not think
it would be proper to adopt such means. I think the word
‘apparent’ in the twenty-first section means apparent in the
face of the instrument, in the condition in which it was left by
the testator, and that if he had recourse to the extraordinary means
to obliterate what he had written, then this court is not bound to take
any steps to undo what he had done --- assuming that the words
covered over cannot be ascertained by inspection, the probate must
go with those parts in blank.”

In the Goods of Ibbetson (1839) 2 Curt 337; 163 ER 431

In the Goods of Brasier [1899] P 36

Finch v Combe [1894] P 191

5.1.3 Words ‘not apparent’

Re Itter [1950] P 130, per Ormerod J

“If the words of the document can be read by looking at

the document itself, then I think that they are apparent
within the meaning of the section, however elaborate may

6
 be the devices used to assist the eye and however skilled
the eye which is being used; but if they can only be read
by creating a new document, as in this case by producing
a photograph of the original writing on the codicil, then I
cannot find that the words are apparent”.

Townley v Watson (1844) 3 Curt 761

5.1.4. Effect where the words are ‘not apparent’

Where words of a will are not apparent, the will is admitted to probate and the affected

words are read as if these were blank spaces in the will.

Re Horsfords Goods (1874) LR 3 P & D 221

Re Itter (1950) P 130

In the Goods of Ibbetson (1839) 2 Curt 337; 163 ER 431

6. INTENTION TO REVOKE

For alterations to have a revocatory effect it is necessary for, the physical element of

alteration and the mental element of intention to be present. The testator must have an

intention to alter and this intention is ascertained from the alteration itself. Thus an

accidental obliteration would not suffice to revoke, as the intention was not deliberate.

Townley v Watson (1844) 3 Curt 761 at 769

Re Adams (dec’d) (1990) 1 CH 601

7. Conditional revocation (doctrine of dependent relative revocation)

The question of whether the intention to revoke was conditional is always a question of

fact. Admissible evidence of that also includes direct extrinsic evidence. This is

7
evidence of the testator’s intention, which comes from outside of the will, as to the

testator’s declaration of intention.

In the Goods of Itter (1950) 1 ALL ER 68

In the Estate of Zimmer (1924) 40 TLR 502

In the Goods of McCabe [1873] LR 3 P & D 94.

Townley v Watson (1844) 3 Curt 761

TUTORIAL QUESTIONS

1. In December, 1998, Maria , a woman of considerable wealth, dies suddenly of a

heart attack. Her husband Michael predeceases her by six months.

Maria’s will was prepared by you. Copies of these were also made but only the
original will was executed and attested to by her witnesses – Melisa and Christal.
In fact, Christal signed Maria’s will on her behalf.

Three months before her death, Maria has a heated argument with her aunt Niomi,
one of the beneficiaries under her will. As a consequence Maria, in an angry tone
of voice, tells Haywood to write over his aunt’s name and replace her name with
hers. She does this in Maria’s presence and in the presence of Christal. Maria
then states that is her last will and Melissa and Christal affix their initials in the
adjoining margin.

Maria then puts away the original in her study among some books and places the
copies in her bedside bureau.

In November of this year, there is a fire and as a result, the original will is burnt to
ashes. However, the copies are discovered unsigned but basically intact.

Christal dies in October 1998, and Melisa who is becoming increasingly senile,
cannot remember attesting to Maria’s will.

However, at the time when the will was executed and attested, Michael and
Caressa were present.

ADVISE the executors as to admissibility to probate of the copy of the testator’s

will and the consequential distribution of Maria’s estate.

8
2. Jevon who is old and bedridden wishes to pass his property to his confessor
Reverend Pachai and he asks his nephew Troy to prepare his will for him. His
nephew Troy prepares a will for Jevon which divides Jevon’s property into three
(3) parts – one for the Reverend; one for himself (Troy) and the third for charity.
Jevon did not read the will but duly signs the will in the joint presence of his two
neighbours who thereafter subscribe their signatures to the will. Two days later
Jevon pastes a bit of brown paper over the disposition to the nephew (Troy) and
another day later, he covers the gift to charity with a fibre tip pen. Jevon now
dies.

ADVISE the executors as to the effect of the will.

Sandra Bart

January, 2021

9
UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 3103 THE LAW OF SUCCESSION

Succession/February, 2021/SB

WORKSHEET No. 6 REPUBLICATION/ REVIVAL/INCORPORATION

1. INTRODUCTION

1.1. DEFINITIONS:

(a)REPUBLICATION –

Where a testator wishes his/her earlier unrevoked will to take effect as if it had been

written not on the date on which it was executed, but rather on a subsequent date, s/he

may REPUBLISH the will.

‘Republication’ is also referred to as ‘confirmation’, reflecting the fact that the testator
is making a later affirmation of the validity and contents of his existing will.

(b)REVIVAL –

Where a testator has revoked his/her will, s/he may wish later to restore it to effect. S/he

may then take steps to REVIVE the will.

See sections 22 and 34 of the Wills Act 1837

COMPARISON:

 REPUBLICATION is concerned with existing UNREVOKED wills or

codicil. It confirms a valid existing will or codicil, giving it a new starting
date, which is the date of republication.

1
  REVIVAL is concerned with an existing REVOKED will or codicil and
if successful, it brings back a revoked will or codicil. In other words, it is
the process by which a revoked will is resurrected and thereby becomes
effective.
 REPUBLICATION, or confirmation, occurs when a will is re-executed with the
proper formalities or by codicil, thereby giving it a new starting date.
 REVIVAL may occur by re-execution of the will that has been revoked and
requires that the formalities of s.4 of the Wills Act, Cap. 12:02 be satisfied again
or by a duly executed codicil.
 REPUBLICATION confirms an un-revoked will or codicil, at a later date.
 REVIVAL, if successful, brings back a revoked will or codicil.

(c)INCORPORATION –

Incorporation by reference is the act of including a second document within another

document by only mentioning the second document. In this way, the entire second

document becomes a part of the main document.

Under this doctrine, documents which are not executed in accordance with s.4 of the

Wills Act, 12:02 may form part of the will if they have been incorporated by the will.

2. REPUBLICATION

‘Republication’ is also referred to as ‘confirmation’, reflecting the fact that the testator
is making a later affirmation of the validity and contents of his existing will. It is the re-
execution of a valid instrument/will the effect of which is to make the instrument/will
operate as if it were created on the date of republication. It is the process of confirming a
will or codicil by a later will or codicil, reflecting the fact that the testator is making a
later affirmation of the validity and contents of his earlier will or codicil. In so far as a

2
testamentary instrument is concerned, the instrument now takes effect as if it had been
written not at the date when it was first executed (written) but at the subsequent date of
its re-execution (republication).

Section 34 of the Wills Act 1837

“. …every will re-executed or republished, or revived by any codicil, shall for the
purposes of this Act be deemed to have been made at the time at which the same
shall be so re-executed, republished or revived;”

2.1 Methods of Republishing

(a) re-execution of the will with the proper formalities

Dunn v Dunn (1866) L.R 1 P & D 277, or

(b) a duly executed codicil containing some reference to the will or codicil to be

republished

Re Smith, Bike v Roper (1890) 45 CH D 632

2.2.1 Republication by re-execution of will

The re-execution of the will must conform to the requirements of section 4 of the Wills

Act, Cap. 12:02 and must have been intended to be a re-execution.

Dunn v Dunn (1866) LR 1 P & D 277

2.2.2 Republication by codicil (containing some reference to Will).

A duly executed codicil which refers to an earlier Will republishes that Will provided that

the testator intended to republish.

3
2.3 Intention to Republish

In either case, the testator must have the intention to republish. However, a very low

standard of proof is required. This means that the evidence of intention to republish need

not be as strong as the evidence presented to show an intention to revive.

Re Hardyman, Teesdale v Mc Clintock [1925] All ER Rep 83; [1925] Ch 287

2.3.1 Evidence of Intention to Republish

(a) Words of republication not necessary

The court will infer the required intention to republish more readily than in the case of

revival.

Re Harvey (1947) CH 284, per Vaisey J –

A codicil described as a codicil to a particular will republishes that will.”

Rowley v Eyton 2 Mer 128

Re Champion (1893) 1 CH 101. –

In this case, the testator said, “I confirm my will in all respects”. This was held to be

sufficient republication.

(b) Reference to the will

It is not necessary for the codicil to contain any direct reference to the will which is

republished.

Re Smith, Bilker Roper (1890) 43 CH D 632

Re J C Taylor (1888) 57 LJ CH 430

4
2.4 Effect of Republication

As is the case of REVIVAL the effect of REPUBLICATION is to make the will or

codicil speak from the date on which it was revived or republished.

Section 34 of the Wills Act, 1837:

“every will re-executed or re-published or revived by any codicil shall for the
purposes of this Act be deemed to have been made at the same time at which
the same shall be re-executed, republished or revived”.

Goonewardene v Goonewardene (1931) AC 647 per Lord Russell:

“the effect of confirming a will by codicil is to bring the will down to

the date of the codicil, and to effect the same disposition of the
testator’s property as would have been effected if the testator had at
the date of the codicil made a new will containing the same
dispositions as in the original will but with the declaration introduced
by the codicil”.

Re Moore (1907) 41 ILT 44, per Barton J:

“The authorities … lead … to the conclusion that the courts have always
treated the principle that republication makes the will speak as if had been re-
executed at the date of the codicil not as a rigid formula or technical rule, but
as a useful and flexible instrument for effectuating a testator’s intentions …”

2.4.1 Operation of the rule

Section 34 of the Wills Act, 1837

“… deemed to have been made at the same time at which the same shall be re-executed,

republished or revived”.

The fact that the revived or republished will or codicil speaks from the date of revival or

republication, affects references to property and persons.

5
2.4.2 Persons

The general rule is that a will speaks from the date of the testator’s republication of the

will as to persons, save where there is a contrary intention in the Will.

Note the doctrine of lapse.

Re Hardyman, Teesdale v Mc Clintock [1925] Ch 287

2.4.3 Property

The rule that a republished will is deemed to have been made when it is republished may

have an effect on property.

Section 24 of the Wills Act 1837.

Re Reeves, Reeves v Pawson (1928) CH 351

Re Champion [1893] 1 CH 101, CA

Re Moore, Long v Moore [1907] 1 IR 315, 41 ILT 150, per BARTON, J,

“The authorities which have been cited lead me to the conclusion that the courts have
always treated the principle that republication makes a will speak as if it had been re-
executed at the date of the codicil not as a rigid formula or technical rule, but as a useful
and flexible instrument for effectuating a testator's intentions, by ascertaining them down
to the latest date at which they have been expressed.”

“On the other hand, the courts have never allowed the republication of a will to contradict
the acts or frustrate the intention of a testator.”

Note the doctrine of ademption.

Drinkwater v Falconer (1755) 2 Ves Sen 623; (1755) 28 ER 397

Re Viscount Galway's Will Trusts; Lowther v Viscount Galway and Others [1949] 2 All
ER 419

Powys v Mansfield (1837) 3 My & Cr 359, 7 LJ Ch 9, 1 Jur 861, 40 ER 964

Re Flemmings Will Trust, Ennion v Hampstead Old People's Housing Trust Ltd 1974
3 AER 323; [1974] 1 WLR 1552

6
2.5 Other consequences of republication

2.5.1 Gift to a witness may be validated

Section 7 of the Wills Act, Guyana, Cap. 12:02

Anderson v Anderson (1872) LR 13 Eq 381

Re Trotter (1899) 1 Ch 764

2.5.2 May validate a will which was not valid at time of execution due to lack of

testamentary capacity.

2.5.3 Incorporation of documents

A document may be incorporated into a will even though it came into existence after the

will was executed, if the will was later republished and referred to the document as in

existence.

In the Goods of Lady Truro (1866) 1 P & D 201

2.5.4 Unattested alterations validated

In the Goods of Heath (1892) 253

In the Goods of Sykes (1873) LR 3 P&D 26

In the Goods of Hall (1871) LR 2 P&D 256

2.5.5 Republication of a will by a codicil – effect on intermediate codicil

Where a will is republished by a codicil, it does not republish an intermediate codicil.

Burton v Newbery (1875) 1 CH D 234

7
2.6 Contrary Intention

Section 34 will not operate if there is a contrary intention.

Doe d Biddulph v Hole (1850) 15 QB 848 per Patterson J at 858

‘… the only limitation of the doctrine is that ‘the intention of the testator be
not defeated thereby’

Re Moore [1907] ILR 315 per Barton J at p. 318:

“Republication gives the will a fresh starting-point but it does not erase the old
date. Nor does it…falsify the fact that the will contained a particular devise and
was executed at a particular time. The authorities which have been cited lead me
to the conclusion that the Courts have always treated the principle that
republication makes the will speak as if it had been re-executed at the date of the
codicil not as a rigid formula or technical rule, but as a useful and flexible
instrument for effectuating a testator’s intentions, by ascertaining them down to
the latest date of which they have been expressed”.

Re Hardyman (1925) CH 287

Re Heath’s WT [1949] Cg 170

Re Viscount Galway's Will Trusts; Lowther v Viscount Galway and Others

(1950) CH 1

3. REVIVAL

Whereas republication is the bringing forward in time of a will which has throughout

remained valid, revival is the process by which a revoked will is resurrected and thereby

becomes operative, provided that it exists and has not been destroyed,

8
3.1 Methods of Revival

Section 22 of the Wills Act 1837, provides that:

“No will or codicil, or any part thereof, which shall be in any

manner revoked, shall be revived otherwise than by:

(i) the re-execution thereof, or

(ii) by a codicil executed in manner therein-before required
and showing an intention to revive the same; and when
any will or codicil which shall partly be revoked, and
afterwards wholly revoked, shall be revived, such revival
shall not extend to so much thereof, as shall have been
revoked before the revocation of the whole thereof, unless
an intention to the contrary shall be shown.”

3.2 Revival by Re-execution of the will

A re-execution of the will that has been revoked requires that the formalities of s.4 of the

Wills Act, Cap. 12:02 be satisfied again.

3.3 Revival by Codicil showing an intention to revive

The court in this instance requires that it must be shown that there was a clear intention to

revive the will.

See section 22 of the 1837 Wills Act “showing an intention to revive the same”.

In the Goods of Steele (1868) 1 P & D 575 at 578, per Wilde J:

“… the legislature meant that the intention of which it speaks should
appear on the face of the codicil, either by express words referring to a
will as revoked and importing an intention to revive the same, or by a
disposition of the testator’s property inconsistent with any other
intention, or by some other expressions conveying to the mind of the
Court with reasonable certainty, the existence of the intention in question.
In other words, I conceive that it was designed by the statute to do away
with the revival of will by mere implication”.

In the goods of Chilcott (1897) P 223

McLeod v McNab [1891] AC 471,65 LT 266

9
Goldie v Adam and Others [1938] P 85,[1938] 1 All ER 586
Re Rear (1975) 2 NZLR 254
In the goods of Stedham 6 P. D. 205

3.4 Codicil written on the will referring to its contents.

A testamentary disposition, written at the foot of a will revoked by marriage, and

referring to a bequest contained in the will, though not referring to the will in terms or

described as a codicil is sufficient to revive the will.

In the Goods of Terrible (1858) 1 Sw & Tr 140; 164 ER 665

In the Goods of Davis (1952) P 279

In the Goods of Steele

3.5 Codicil attached to revoked will.

A codicil found attached by tape to a will which has been revoked by a later will does not

revive the revoked will.

In Marsh v Marsh (1860) 1 Sw&Tr 528; 164 ER 845

“an intention must appear in the contents of the codicil itself and could not

be established from any act outside the codicil such as merely tying the codicil

to the revoked will, as in this case”.

3.6 Destroyed will cannot be revived – (existence of revoked will)

To revive a will under s.22 the revoked will must be in existence.

In Rogers v Goodenough(1862) 2 SwTr 342; 164 ER 1028

In the Goods of Steele

10
Re Reade 's Goods, In The Goods of Alfred Reade

3.7 The Effect of Revival

According to s.34 of the Wills Act 1837, the will shall be deemed to have been made at

the time when it was revived. A revived will operates as if it had been executed at the

time of its revival.

Neate v Pickard (1843) 2 N of C 406.

3.7.1 Incorporation

A document which was not in existence when the original will was made but came into

existence thereafter, prior to the revival, may be incorporated into the revived will.

3.7.2 Alterations

Similarly, invalid alterations made after the will’s execution may be validated by the

revival of the will.

Neate v Pickard (1843) 2 N of C 406

3.7.3. Partial revocations prior to Revocation

Section 22:

No will or codicil, or any part thereof, which shall be in any manner revoked, shall be
revived otherwise than by the re-execution thereof or by a codicil executed in manner
herein-before required and showing an intention to revive the same; and when any will
or codicil which shall be partly revoked, and afterwards wholly revoked, shall be
revived, such revival shall not extend to so much thereof as shall have been revoked
before the revocation of the whole thereof, unless an intention to the contrary shall
be shown.

Neate v Pickard (1843) 2 N of C 406

11
3.8 Effect of the revival of a will on an intervening will

In Re Pearson [1963] 3 ALL ER 763

In the Goods of Dyke (1881) 6 PD 205

In this case the second will did not contain a revocation clause and the Court held

that:

“Both wills and the codicil were admitted to probate since the second will was
only partially revoked, to the extent of any inconsistency with the first will and
the codicil”.

3.9 Revocation of a revoking document does not revive the first one

If the first will is revoked by a second will, revocation of the second will does not revive

the first one.

In the Goods of Hodgkinson (1893) P 339 CA

4. INCORPORATION

Documents which are not executed in accordance with s.4 of the Wills Act, 12:02 may

form part of the will if they have been incorporated by the will.

Rule 12(2) Non Contentious Probate Rules 1954 UK

…where it appears…incorporated in the will, the registrar may require the

document to be produced and may call for such evidence in regard to the attaching
or incorporation of the document as he may think fit.

In the Goods of Balme [1897] P 261

12
4.2 The requirements for incorporation

In order for a document to be incorporated three conditions must be satisfied:

(a) the document must be already in existence at the date when the will is executed;

Singleton v Tomlinson (1878) 3 App Cas 404

In the Goods of Lady Truro (1846) LRI P & D 201

(b) the document must be referred to in the will as being already in existence at the

date when the will is made;

The will must refer to the document as already in existence. Thus, incorporation does not

occur if the reference in the will can be construed as applicable to a document coming

into existence after the will’s execution.

Re Jones [1942] 1 ALL ER 642

University College of North Wales v Taylor [1908] P 1401, CA

In the Goods of Smart [1902] P 238

“…if a testator, in a testamentary paper duly executed, refers to an existing

unattested testamentary paper, the instrument so referred to becomes part of
his will; in other words, it is incorporated into it; but it is clear that, in order
that the informed document should be incorporated in the validly executed
document, the latter must refer to the former as a written instrument then
existing – that is, at the time of execution – in such terms that it may be
ascertained”.

In the Estate of Saxton, Barclays Bank Ltd v Treasury Solicitor [1939] 2 All ER 418

13
 (c) the documents must be clearly identified in the will.

Allen v Maddock (1858) 11 Moo 427

Croker v Marquis of Hertford (1844) 4 Moo PC 339; 13 ER 334, per Dr. Lushington at

p. 344:

“Certainly an identification is the very essence of incorporation, and that

if any doubt existed as to the instrument to be incorporated, the principle
of incorporation was inapplicable”.

In the Estate of Mardon [1944] P 109

In the Goods of Gill (1869) 2 P & D 6

5. The consequences of incorporation

5.1. Admissible to Probate

A document which has been validly incorporated forms part of the will and is admissible

to probate.

Re Edwards’ WT [1948] 1 ALL ER 821, CA

In the Goods of Balme (197) P 261

5.2 Testamentary effect

The incorporated document operates as part of the will and is therefore subject to the

ordinary rules such as lapse and ademption as are applicable to wills.

Bizzey v. Flight (1876) 3 CH 268

14
5.3. Incorporation of invalid will in duly executed codicil

If the requirements for incorporation are satisfied, a testator may incorporate an invalidly

executed will or codicil in a subsequent duly executed codicil, thereby making it

admissible to probate.

In the Goods of Almosmino (1859) 29 LJP 46

TUTORIAL QUESTIONS

1. Ann executed a will by which she left all her estate to Brian. A year later she
drew up a document in the form of a will, containing a gift of all her estate to
Claude, but containing no revocation clause. Ann then signed the document;
Claude and Cameline witnessed the signing, and all signed their names as
witnesses. Ann then tore up the earlier will, saying to Claude “I had much rather
you had my money than Brian”.

Ann had now died. Shortly before she dies, Ann executed a codicil saying in
place of a gift of all my property to Brian, I wish to make a gift of $1,000 to the
Battersea’s Dog Home and for him to have the residue.

Advise Claude

How would your answer be different if Brian had also witnessed the will?

2. In 1990, Ambrose made a will leaving the residue of my 99 – year lease of the
Laurels to Bertram. The lease expired in 1992 and Ambrose acquired the fee
simple estate to the Laurels. In 1996, Ambrose made a codicil to his will
appointing an additional executor. Ambrose had just died.

Advise Bertram whether he is entitled to the Laurels

Sandra Bart
February 2021.

15