Law of Wills belongs to the area of Property, family and trust law
The law in England and Wales that governs wills is mainly derived from the Wills Act 1837. The law that specifies when a person has the capacity to make a will was set out in a case from 1870.
” Will ” includes any testamentary instrument or act, and ” testator ” shall be construed accordingly [Wills Act 1963]
The law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.[ UK Law Commission -law of wills on 13 July 2017]
The significant changes relevant to a review of wills law by UK Law Commission includes:
- the ageing population and the greater incidence of dementia;
- the evolution of the medical understanding of disorders, diseases and conditions that could affect a person’s capacity to make a will;
- the emergence of and increasing reliance upon digital technology;
- changing patterns of family life, for example, more cohabiting couples and more people having second families; and
- that more people now have sufficient property to make it important to control to whom it passes after their death.
All property may be disposed of by Will.
And be it further enacted, That it shall be-lawful for every Person to devise, bequeath, or dispose of, by his Will executed in manner herein-after required, all Real Estate and all Personal Estate which he shall be entitled to, either at Law or in Equity, at the Time of his Death, and which if not so devised, bequeathed, or disposed of would .devolve upon the Heir at Law, or Customary Heir of him, or, if he became entitled by Descent, of his Ancestor, or upon his Executor or Administrator; and that the Power hereby given shall extend to all Real Estate of the Nature of Customary Freehold or Tenant Right, or Customary or Copyhold, notwithstanding that the Testator may not have surrendered the same to the Use of his Will, or notwithstanding that, being entitled as Heir, Devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the Want of a Custom to devise or surrender to the Use of a Will or otherwise, could not at Law have been disposed of by Will if this Act had not been made, or notwithstanding that the same, in consequence of there being a Custom that a Will or a Surrender to the Use of a Will should continue in force for a limited Time only, or any other special Custom, could not have been disposed of by Will according to the Power contained in this Act, if this Act had not been made ; and also to Estates pur autre vie, whether there shall or shall not be any special Occupant thereof, and whether the same shall be Freehold, Customary Freehold, Tenant Right, Customary or Copyhold, or of any other Tenure, and whether the same shall be a corporeal or an incorporeal Hereditament; and also to all contingent, executory, or other future Interests in any Real or Personal Estate, whether the Testator may or may not be ascertained as the Person or one of the Persons in whom the same respectively may become vested, and whether he may be entitled thereto under the Instrument by which the same respectively were created or under any Disposition thereof by Deed or Will; and also to all Rights of Entry for Conditions broken, and other Rights of Entry; and also to such of the same Estates, Interests, and Rights respectively, and other Real and Personal Estate, as the Testator may be entitled to at the Time of his Death, notwithstanding that he may become entitled to the same subsequently to the Execution of his Will. [Original Wills Act 1837]
All property may be disposed of by will; Contingent Interests; Rights of Entry; and property acquired after the execution of the will.
It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner herein-after required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon his executor or administrator; and the power hereby given shall extend to all contingent, executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will [Wills Act 1837 Amended]
Consequence of Not Making Will
And be it further enacted, That if no Disposition by Will shall be made of any Estate pur autre vie of a Freehold Nature, the same shall be chargeable in the Hands of the Heir, if it shall come to him by reason of special Occupancy, as Assets by Descent, as in the Case of Freehold Land in Fee Simple:; and in case there shall be no special Occupant of any Estate pur autre vie, whether Freehold or Customary Freehold, Tenant Right, Customary or Copyhold, or of any other Tenure, and whether a corporeal or incorporeal Hereditament, it shall go to the Executor or Administrator of the Party that had the Estate thereof by virtue of the Grant; and if the same shall come to the Executor or Administrator either by reason of a special Occupancy or by virtue of this Act, it shall be Assets in his Hands, and shall go and be applied and distributed in the same Manner: as the Personal Estate of the Testator or Intestate.
Wills Act 1963 requires following formalities while making Will
1 General rule as to formal validity.
A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.
2 Additional rules.
(1)Without prejudice to the preceding section, the following shall be treated as properly executed—
(a)a will executed on board a vessel or aircraft of any description, if the execution of the will conformed to the internal law in force in the territory with which, having regard to its registration (if any) and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected;
(b)a will so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property was situated;
(c)a will so far as it revokes a will which under this Act would be treated as properly executed or revokes a provision which under this Act would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be so treated;
(d)a will so far as it exercises a power of appointment, if the execution of the will conformed to the law governing the essential validity of the power.
(2)A will so far as it exercises a power of appointment shall not be treated as improperly executed by reason only that its execution was not in accordance with any formal requirements contained in the instrument creating the power.
3 Certain requirements to be treated as formal.
Where (whether in pursuance of this Act or not) a law in force outside the United Kingdom falls to be applied in relation to a will, any requirement of that law whereby special formalities are to be observed by testators answering a particular description, or witnesses to the execution of a will are to possess certain qualifications, shall be treated, notwithstanding any rule of that law to the contrary, as a formal requirement only.
Every Will shall be in Writing, and signed by the Testator in the Presence of Two Witnesses at one Time.
That no Will shall be valid unless it shall be in Writing and executed in manner herein-after 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 such Signature shall be made or acknowledged by the Testator in the Presence of Two or more Witnesses present at the same Time; and such Witnesses shall attest and -shall’ subscribe the Will in the Presence of the Testator, but no Form of Attestation shall be necessary.
That any Soldier being in actual Military Service, or any Mariner or Seaman being at Sea, may dispose of his Personal Estate as he might have done before the making of this, Act.
Signing and attestation of wills
No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)it appears that the testator intended by his signature to give effect to the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)each witness either—
(i)attests and signs the will; or
(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),but no form of attestation shall be necessary.[Wills Act 1837 Amended]
The words “real estate” shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words “personal estate” shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male.
Publication of will not be requisite.
Every will executed in manner herein-before required shall be valid without any other publication thereof.
Will not to be void on account of incompetency of attesting witness.
If any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.
Gifts to an attesting witness to be void.
If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.