2.1 A person wishing to provide for such matters as the disposition of his or her property and the administration of his or her affairs after death usually does so by making a will In ordinary cases a will must be in writing and be signed and witnessed in a particular manner in order to be valid. The will may be revoked at any time by the person who makes it (the testator1), and again there are rules which must be complied with before the revocation is valid. These rules, which determine the validity of acts of will-making (testator) and revocation. are generally referred to in this Report as “formalities”. In this chapter we summarise the existing formalities and discuss their history and function.
I. A BRIEF HISTORY
2.2 The law prescribing the formalities for making and revoking wills in New South Wales evolved in England.2 During the feudal era different rules applied to real and personal property. The first statutory formalities were imposed in 1540, when the Wills Act3 enabled most real property to be devised by will. The will was required to be in writing, although there was no requirement for signature by the testator or for attestation by witnesses, or indeed for the writing to be the testator’s.
2.3 The ecclesiastical courts, which applied the law relating to wills of personalty,4 permitted the making of oral wills in certain circumstances. Such wills, which were termed “nuncupative wills”, could be validly made provided the testator declared his or her will before a sufficient number of witnesses.
2.4 In 1677 the law was altered by the Statute of Frauds.5 Section 5 required that a will devising real property should be in writing and signed by the testator or by some other person in his presence and by his express direction. and should be attested and subscribed (see para 2.11) in the presence of the testator by three or four credible witnesses, failing which it should be” utterly void and of none effect”. This provision did not apply to the execution of wills of personal property when the value of the estate was 30 pounds or less. But for estates above that size there were detailed formalities regulating when an oral will would be admitted to probate.6 These limitations meant that many estates were too large to qualify for nuncupative wills or that it was difficult to rely on nuncupative wills, which gradually went out of fashion.
2.5 These statutory formalities rendered invalid some testamentary instruments that represented the genuine “will” of testators. In 1757 Lord Mansfield protested that:
many more fair wills have been overturned for want of the form. than fraudulent have been prevented by introducing it. I have had a good deal of experience.., and hardly recollect a case of a forged or fraudulent will where it has not been solemnly attested ... it is clear that judges should lean against objections to the formality They have always done so, in every construction upon the words of the statute ... And still more ought they to do so, if that system would spread a snare, in which many honest wills must unavoidably be entangled, and be no preservative against fraud.7
2.6 Despite this, the only alteration to the statutory formalities prior to 1837 was the addition of the requirement that a beneficiary who witnessed a will lost the benefit under it, but remained competent to prove the will.8
2.7 However, in 1833 the English Real Property Commissioners published their Fourth Report which dealt with the law of wills. They recommended repeal of the provisions of the Statute of Frauds relating to nuncupative wills and the relaxation of some of the general formalities required for making and revoking wills.
2.8 These recommendations were incorporated in the Wills Act 1837,9 which eliminated the differences in formalities relating to real and personal property. Section 9 of that Act is the source of the current requirements for formalities in most Australian, American and Canadian jurisdictions. Its counterpart in New South Wales is set out at para 2.11.
2.9 In recent years there have been substantial law reform proposals relating to the making and the revocation of wills in England, several Canadian provinces, New Zealand and some Australian States. The reports by law reform agencies or committees that have been considered are listed in Appendix C.
II. SUMMARY OF THE PRESENT LAW
2.10 The formalities prescribed for the valid execution, alteration and revocation of wills are contained in the Wills, Probate and Administration Act, 1898. We do not propose to discuss in detail the vast body of case law relating to the meaning and application of the relevant sections. It is however necessary to refer to some of the principles embodied in this case law, as a background to our discussion in later chapters about appropriate reforms.
A. Executing and Altering a Will
2.11 The formalities prescribed for the making of a valid will are set out in s7 of the Wills, Probate and Administration Act, 1898. These formalities apply to all wills other than those made by privileged testators.10 Section 7 provides:
7. No will 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 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.
The expressions” attest’ and” subscribe” in s7 require explanation “Attesting” is witnessing execution of the will, by seeing the testator’s act of signing or by being present when the testator acknowledges his or her signature. “Subscribing” is the act of signing the will as a witness. We now consider briefly the various formal requirements set out in s7.
1. Writing
2.12 Except for privileged wills a will must be “in writing” to be valid. The writing may be in ink or pencil, or in typewriting, printing, lithography, or photography.11 Any permanent form of visual representation is sufficient.12 The writing may be on any material, including on an egg shell.13 It maybe in any language, or in a code or use abbreviations.14 A will recorded on sound or video tape, not being a visual representation of the words used, does not satisfy the statutory requirements for writing, Whether this last mentioned limitation should be varied is considered in paras 4.15-4.16.
2. Testator’ s Signature
2.13 The requirement for the testator to sign has been construed by the courts with considerable latitude No particular form of signature is required, but it must be intended by the testator to constitute execution (or authentication) of the will Signature by mark initials, assumed name or stamped name, or by description (such as “your loving mother”15)16 is acceptable. Part of a person’s name or normal signature is also sufficient if it is clear that the testator intended this to constitute his or her signature for the purpose of execution.17 This last mentioned requirement created a particular problem in Re Colling,18 a case which is considered in more detail in chapter 4.
2.14 The testator need not sign personally but may sign by an agent, provided that the agent signs in the presence and by the direction of the testator. This allows a person who is physically unable to execute a document to make a valid will It has been held that this method of execution is effective if the agent signs the testator’s name, or the agent’ s name, or both.19 The courts have taken a generous approach when a testator is unable to give express authority to the agent and the authority may be evidenced by conduct.20 The agent may also attest the will as one of the witnesses.21
3. Position of Testator’ s signature
2.15 One of the statutory requirements in s7 and its counterparts elsewhere, is for the will to be signed at its “foot or end” by the testator. Despite the apparent simplicity of this, one text writer has pointed out that:
It is... almost as if there was an underground organisation of troublesome testators who plotted together to see where else they could place their signatures. Signatures were placed length wise and sideways in the margin, in the middle of the text, at the top, on the back, and in almost every conceivable place.22
2.16 The practical operation of this requirement has caused difficulties and has resulted in the failure of many wills. In an attempt to resolve those difficulties. the Wills Act Amendment Act was passed in 1852 in the United Kingdom. Section 1 of that Act was adopted in New South Wales and now appears as s8 of the 1898 Act Section 8 provides:
8.(1) Every will shall, so far only as regards the position of the signature of the testator or of the person signing for him as aforesaid, be deemed to be valid within the meaning of this part, if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent, on the face of the will, that the testator intended to give effect by such his signature to the writing signed as his will, and no such will shall be affected by the circumstances -
(a) that the signature does not follow or be immediately after the foot or end of the will; or
(b) that a blank space intervenes between the concluding word of the will and the signature; or
(c) that the signature is placed among the words of the testimonium clause or of the clause of attestation. or follows or is after, or under the clause of attestation, either with or without a blank space intervening, or follows, or is after, or under, or beside the names or one of the names of the subscribing witnesses; or
(d) that the signature is on a side, or page, or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will is written above the signature; or
(e) that there appears to be sufficient space on or at the bottom of the preceding side, or page, or other portion of the same paper on which the will is written to contain the signature.
(2) The enumeration of the above circumstances shall not restrict the generality of the above enactment, but no signature under this part shall be operative to give effect to any disposition or direction which is underneath or which follows it nor shall it give effect to any disposition or direction inserted after the signature shall be made.
This provision outlines some commonly occurring situations in which the signature is not physically at the foot or end of the will and protects the will from invalidity where these occur. It has solved some but not all problems.
2.17 In one sense, s8 has added two further complications. First, it is necessary that the signature be placed so that it “shall be apparent, on the face of the will” that the testator intended to give effect by that signature to the writing signed as his or her will Secondly, the signature does not give effect to any disposition which is underneath it or which is inserted after the testator signed the will.
2.18 Testators’ aberrations in placing their signatures in almost any position in some wills have continued to cause difficulties. Generally signatures at or near the top of wills have been held ineffective.23 Similarly, signatures written across the middle of the will do not satisfy the Act without some indication on the face of the will that the testator regarded the signature as intended to give effect to all of the writing in the will: and the consequence has usually been to exclude the whole of the document from probate.24 In some decisions signatures written perpendicularly in the margin of the will, near or towards the top of the will have been held to be effective where there was no space left for a signature at the bottom of the page.25 In In the Goods of Hornby,26 Wallington J allowed the signature in the margin on the basis that the testator intended that space for the signature giving effect to the will However, such a subjective test appears to be unjustified27 in view of the need for objective criteria (ie. apparent on the face of the will) imposed by s8.
2.19 Many of the cases involve wills signed at the bottom of the first or second pages, which were followed by subsequent pages that were not signed. In some cases it was possible to regard execution on the first page as being at the foot or end of the will because the testator had deliberately and obviously used the pages in an unconventional order or because the signed part referred to later parts of the will in such a way as to incorporate them.28 The result has been that the courts have dealt in three different ways with wills in which the testator’ s signature was not situated geographically at the end of the writing:
- by granting probate of the entire will;29
- by granting probate of that portion of the instrument situated before the signature;30
- by refusing to grant probate on the ground that the will was not signed at the foot or end.31
This is hardly satisfactory.
2.20 A complex and almost irreconcilable body of judicial decisions has emerged in dealing with the problems caused by the position of testators’ signatures. In some cases the judges have bemoaned the fact that the clear intentions of testators have been defeated by the formality requiring signature at the” foot or end”.32 The courts have struggled with the express terms of the statutory requirements and the desire to give effect to testamentary intentions contained in dubiously executed wills. The “end” of a will is capable of being construed spatially (subject to the latitude permitted by s8), or in terms of the time of the signature (ie. after the entire will has been completed), or at the end in intention.33
2.21 Re Beadle34 is an example of how testators’ intentions have been defeated by these statutory requirements:
The testatrix Mrs Emma Beadle was assisted in preparing her will by Mr and Mrs Mayes, to whom she referred as Charley and Maisy. Mrs Mayes wrote the will as dictated by the testatrix. The testatrix and Mr Mayes signed the paper in the right hand corner, but Mrs Mayes did not sign it The testatrix then wrote on an envelope” My last will and testament, EN Beadle, to Charley and Maisy. After the will was placed inside the envelope which was sealed, Mr Mayes wrote on the back of the envelope “We certify that the contents of this letter was written in the presence of ourselves” and Mr and Mrs Mayes signed it. Although Goff J held that there was a sufficient connection between the paper and the envelope to enable them to constitute the will, neither of the testatrix’ s two signatures constituted an effective signature at the foot or end of the will and the attestation was also defective.
2.22 Some judges have attempted to rationalise this maze of decisions, notably Helsham J (as he then was) in In the Will of Spence.35 His Honour held that the court should first determine what is the face of the will, and that this may be done with the aid of extrinsic evidence, including how the testator handled, read, treated and signed the paper. Only then may the court determine the geographical end of the will and whether it is apparent from the position of the signature relative to that end that the testator intended “to give effect by such his signature to the writing signed as his will”. Whilst his Honour’s approach appears to be fully justified in principle,36 it does not resolve some of the anomalies and difficulties in this area Clearly some legislative solution would assist in rationalising the law and creating some order in a confused area.
4. Witnessing
Making or Acknowledgment of Signature by Testator
2.23 A testator must make or acknowledge his or her signature in the presence of two witnesses. The testator must sign the will before the witnesses subscribe their signatures. The testator has two alternatives:
- to sign the will in the presence of the witnesses; or
- to acknowledge before the witnesses the signature he or she has already made.
2.24 Acknowledgment may be made by words or by gestures, which involve an acknowledgment that the signature on the instrument has been made by the testator, but the witnesses must see or have the opportunity of seeing the testator’ s signature at the time of the acknowledgment.37 The requirement is to acknowledge the signature and not the will Therefore the witnesses need not be made, aware that the instrument which has been executed is a wilt It is not sufficient for the testator to acknowledge the signature to each witness in turn, for the acknowledgment must be made in the joint presence of the witnesses. The testator cannot sign in front of one witness and acknowledge his or her signature to the other witness. This requirement has frequently been the downfall of wills.38
The Presence of Two or more Witnesses
2.25 A witness must be mentally and physically capable of witnessing the testator’s signature. Therefore a blind person cannot be a witness,39 nor can a person lacking appropriate mental awareness such as someone “asleep, or intoxicated, or of unsound mind”.40 The witnesses must either see or have the opportunity of seeing the testator’s signature, and this is not satisfied if the signature is covered with blotting paper.41
2.26 The requirement that the testator’s signature be made or acknowledged in the joint presence of the witnesses means that if one of the witnesses was so far away at the time the signature was made or acknowledged that he or she did not have the physical opportunity of seeing the signature at the same time as the other witness the will is invalid.42 It is insufficient for the testator to sign or to acknowledge his or her signature separately to each witness.43 The stated reason for this requirement is that otherwise there might be a substantial interval between one witness’s involvement and another’s, with the result that they could be observing the testator at different times and thus seeing materially different facts relevant to issues of the testator’ s capacity, understanding or freedom from pressure. It also is said to operate as a check upon fraud by effectively requiring the attesting witnesses to agree upon the same story if they are to give perjured evidence.44
Attesting and Subscribing the Will
2.27 Section 7 requires the witnesses to attest (ie witness the testator’s act of signing or acknowledging and subscribe (ie sign as witness). The witnesses should each attest and subscribe the will after the testator has signed the will. As in the case of the testator, a witness can sign the will by using a signature or mark.
2.28 But unlike testators, witnesses must actually sign (“subscribe”) in the presence of the testator. They cannot merely acknowledge a signature previously made in the testator’s absence.45 Each witness should, in the testator’ s presence, complete what is intended to be his or her signature on the will.46
2.29 The witnesses must have signed the will with the intention of attesting the testator’s signature and not merely for the purpose of identification.47
2.30 There is no need for the signature of a witness to be positioned in any particular place in the will, It need not be at the end of the will, or next to or below the testator’s signature, or next to the signature of the other attesting witness. It is however usual (and prudent) for both witnesses to sign at the end of the will, following the testator’ s signature, to avoid difficulties in establishing due execution of the will and to avoid the suggestion that signatures far removed from the testator’s were not for attestation. but for some other purpose. It is essential that the witnesses should attest the testator’s signature to the will, and not some other signature on the will.48
In the Presence of the Testator
2.31 “Presence” of the testator also involves physical and mental elements. The testator should see, or have the opportunity of seeing, the witnesses subscribe their signatures to the will, and he or she should also be conscious of the witnesses’ activities with reference to the will. There have been several decisions in which there was a dispute involving a witness who, after the testator signed, took the document to another room or part of a house: the validity of the wills in question turned on whether the testator could, from the position which he or she occupied at that time, have seen the witnesses sign the will.49
5. Alterations
2.32 Section 18(1) of the Wills, Probate and Administration Act, 1898 prescribes the formalities required for valid alterations to wills. other than wills of privileged testators.50 That subsection 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 are not apparent, unless such alteration is executed in like manner as here in before is required for the execution of a 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 are 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.
These formalities are only necessary for alterations made after the will was executed, but there is a presumption that alterations which are not duly signed and attested were made after execution.51
2.33 A valid alteration after execution requires that the alteration be executed with the same formalities as for the execution of a will. It is not enough for the alteration to be signed by the testator alone, or by the witnesses alone52 unless the testator previously acknowledged his or her signature at the end of the will as applying to the altered will in the joint presence of the two witnesses.53
2.34 Where alterations are not executed in accordance with the formalities prescribed in s18(1) different consequences flow depending on whether or not the words or effect of the will before the alteration are "apparent”. The original state of the will is ”apparent” if it can be ascertained on inspection (including inspection by use of a magnifying glass or microscope).54 It is not apparent if the will has to be physically interfered with by a chemical process or by removing a piece of paper pasted over a word55 or by making another document such as an infra red photograph56:
- If the original state of the will is “apparent” it will be admitted to probate in its original form.57
- If the original state of the will is not “apparent” probate will be granted with the obliterated parts left blank,58 unless what is known as the doctrine of dependent relative revocation applies.59 One example of the application of that doctrine is In Goods of Itter60 where the testatrix pasted strips of paper over the amounts of legacies making them “non-apparent”. She wrote amounts of money on top of these strips but the alterations were neither signed nor attested. From the fact that the names of the legatees were not obliterated the court inferred that the testator intended to revoke the original legacies only if the new ones were effectively substituted and accordingly granted probate of the will in its original form.
B. Revoking a Will
2.35 Generally, to revoke a will, it must be shown that the testator actually intended to revoke it and that the revocation complied with certain formalities.61 With one exception. a will is not revoked by an alteration to the circumstances of the testator.62 The exception is the automatic revocation of a will by marriage, which is the subject of chapter 9.
2.36 Section 17 of the Wills, Probate and Administration Act, 1898 provides for the manner of revocation of wills, in the following terms:
17. (1) A will shall not be revoked wholly or in part except as mentioned in section 15 [revocation by marriage] or in this section.
(2) A will may be revoked by another will,
(3) A will may be revoked -
(a) by some writing declaring an intention to revoke the will and executed in the manner in which a will is required to be executed by sections 7 and 8;
(b) if the will is in writing, by the burning, tearing or destruction otherwise of the will by the testator or by some person in his presence and by his direction, with the intention of revoking the will; or
(c) if at the time of the recovation the testator is a priviledged testator, by his declaration of an intention to revoke the will.
(4) A testator may revoke his will as mentioned in subsection (3) notwithstanding that he is a minor.
(5) This section applies to a revocation made after the commencement of the Minors (Property and Contracts) Act, 1970.63
2.37 Like the law relating to making and altering a will, these statutory provisions have been construed as requiring strict and literal compliance in order that the revocation might be legally effective. Leaving aside privileged testators,64 s17 prescribes three means of revocation:
- by another will
- by some writing, duly executed as a wilt declaring an intention to revoke the will
- by the burning, tearing or “destruction otherwise” of the will by the testator or by some person in his presence and by his direction, with the intention of revoking it.
2.38 A will or writing declaring an intention to revoke an earlier will does not achieve revocation unless it is validly executed in the same way as a will, Consequently, any defects in the execution formalities (and proposals for their reform) will extend to the revocation area.
2.39 There are however two additional areas, peculiar to revocation formalities, which in our view need close attention:
- wills containing express revocation clauses which do not truly represent the testator’s intention and
- the scope of the” destruction” category of revocatory action mentioned in para 2.37.
We shall elaborate on the issues for reform presented by these two areas in chapter 5.
III. THE FUNCTIONS OF WILLS FORMALITIES
2.40 Before one can properly determine whether the formalities for making or revoking wills should be extended, modified or dispensed with, it is necessary to consider the functions which these formalities may be performing. It has been pointed out65 that formalities” should not be revered as ends in themselves, enthroning formality over frustrated intent”. Consequently we must examine the purpose of these requirements before we can decide whether they should be modified.
2.41 As we shall indicate in Chapter 3, our overall approach has been to question whether any particular formality related to the execution or revocation of wills is serving a useful purpose, and to weigh this up against the perceived capacity of that formality to defeat the genuine intentions of indiyidual testators. Naturally this weighing up involves judgment rather than any mathematical process. In performing this process we have borne in mind that the three major options for reform are to relax some of the formalities, to add some further formalities, or to provide some judicial power to dispense with formalities on an ad hoc basis. These options are not mutually exclusive.
2.42 There is a body of academic literature which provides a functional analysis of wills formalities.66 Various functions have been identified which the writers have labelled “evidentiary” “cautionary” or “ritual”; “protective”; and” channelling”. These labels will be used here, although the concepts summarised by them will be explained. The purposes of some specific formalities will be more closely examined when we turn to the possible reform of formalities.
A. Evidentiary Function
2.43 This function refers to the role of wills formalities in preserving cogent proof of facts vital to determining what the testator intended and showing that he or she was consciously involved in making or revoking a will, The requirement for writing preserves in permanent form the language chosen by the testator or the testator’s adviser to indicate the testator’s testamentary intention and to express his or her particular wishes. It is designed to enable the court to ascertain these matters with certainty. Writing provides some protection against fraud and lapse of memory, since at the time when these matters must be determined the testator will be dead and unable to testify. There may also be an extended lapse of time between the making of the will and the grant of probate, so that the witnesses may be dead or unavailable, or their evidence may be unreliable as regards the contents of the will.
2.44 The testator’s signature authenticates the document and identifies the maker of the will. That function is not always observed, because (i) the testator’ s signature may not be his or her correct name; (ii) it may be in the form of a sign or mark, or (ii) the testator may authorise someone else to sign the will on his or her behalf. However, generally the testator’ s signature does indicate finality of testamentary intention and authenticates the document as the testator’s will.
2.45 Signatures at the end of the will and attestation provide some evidence of completeness, and act as some safeguards against interpolation Attestation67 also fulfils an evidentiary function with reference to execution and testamentary capacity. The requirement that the witnesses be disinterested (Chapter 8) is meant to eliminate self-serving testimony.
2.46 Nelson and Starck conclude, with reference to the evidentiary function of wills formalities:
It cannot be said with certainty that these goals will be achieved by the requirements of such formalities. Interpolation of a signed and witnessed will is not impossible since there is no requirement that the testator sign every page and there is no requirement that the witnesses know what is in the instrument. The fact that they promote achievement of the goals is, however, sufficient to warrant their inclusion in the statute.68
B. Cautionary or Ritual Function
2.47 The requirements for writing, signing and witnessing of wills may also serve the purpose of reminding the testator and the witnesses of the significance of their actions. The ritual of will-making should bring home to the testator the fact that an important transaction is involved as well as assist in demonstrating to the court that he or she was aware of that fact. Formalities tend to emphasise the solemnity of the testamentary act and to preclude the possibility that the testator was acting casually or haphazardly. The presence of the signature shows that the instrument was completed and adopted by the testator as his or her will and that the writing was not merely deliberative, or a preliminary draft, or haphazard scribbling However, ritual or ceremony cannot guarantee that each testator is aware of the solemnity of the testamentary act, nor will it preclude proof that a particular will was a sham, in the sense that the testator had no actual testamentary intent.
C. Protective Function
2.48 The requirements that the testator sign or acknowledge his or her signature in the presence of disinterested witnesses and that they attest in the testator’s presence are meant to protect the testator from imposition at the time of execution The essential presence of a number of people acts as a check against impropriety and influence.
D. Channelling Function
2.49 Wills formalities also perform what has been referred to as a channelling function. by promoting uniformity in the organisation, language and content of most wills and facilitating “judicial diagnosis”69 of whether a legally enforceable transaction was intended. The formalities are important in establishing the integrity of the wilt and in minimising the judicial time and effort required to ascertain the purpose of the document and to implement it after the testator’s death. They also tend to avoid litigation and expense and make the provision of legal advice more certain.70
FOOTNOTES
1. In this Report the term “testator” will be used to include “testatrix”.
2. For a review, see Hastings & Weir. Probate Law and Practice 2nd ed (1948) pp 7-15.
3. Wills Act. 1540. (32 HenryVill. cl). Previously, land could be effectively devised by means of a feoffment to the uses of the testators will. These were prohibited in 1535 by the Statute of Uses (27 Henry VIII, c10).
4. This term is not exactly equivalent to personal property see Glossary.
5. 29 Car II el.
6. See Holdswortb. A History of English Law. Vol VI. p385.
7. Windham v Chetwyn (1757) 1 Burr 414 at 420-421 (97 FR 377 at 381).
8. 25 Ceo II c6. s1. See further, chapter 8 infra.
9. 7 Will IV & I Vict c26. The Act was adopted in New South Wales in 1840 (3 Vict No 5).
10. As to privileged testators, see generally chapter 11.
11. Interpretation Act. 1897. s19: In Will of Black 5 WN(NSW) 36.
12. Mellows, The Law of Succession, 4th ed (1983) p53.
13. Hodson v Barnes (1926) 43 TLR 71, although that “will” failed for lack of testamentary intention.
14. Kell v Charmer (1856) 23 Beav 195 (53 FR 76).
15. In the Estate of Cook [1960] 1 WLR 353.
16. Hardingham, Neave and Ford. Wills and Intestacy in Australia and New Zealand (1983) pp28-29: Williams. Law Relating to Wills. 5th ed. Vol 1. Pp 83-85.
17. In the Goads of Chalcraft [1948] P 222: Re CoIling [1972] 3 All ER 729: [1972] 1 WLR 1440: In re Smith (1955) SASR 227.
18. See note 17.
19. In the Goods of Clark (1839) 2 Curt 329 (163 ER 428): In Goods of Bailey (1838) 1 Curt 914 (163 FR 316).
20. Williams, note 16 above, at pp84-85: In the Estate of Haltam (1913)108 LT 732: In Goods of Marshall (1866) 13 LT 643.
21. In Goods of Bailey (1838) 1 Curt 914 (163 FR 316).
22. Mellows, The Law of Succession (1977) 3rd ed, p74.
23. ln re Stalman (1931) 145 IT 339: In the Goods of Harris [1952] P 319: In the Estate of Roffe (1920) 20 SR (NSW) 632: Re Beadle (deceased) [1974] 1 All ER 493.
24. See Hardingham. Neave & Ford, note 16 above, pp34-36. Williams. note 16 above. pp80-81.
25. In the Will of Everingham (1900) 21 LR (NSW) (B & P) 15: In Estate of Roberts [1934] P 102.
26. [1946] P 171.
27. Hodgekiss, Hornby’s Case and Signatures to Wills (1953) 26 ALJ 575: Hardingham, Neave and Ford. note 16 above, p35.
28. Cinnamon v Public Trustee (1934) 51 CLR 403.
29. In the Will of Plain (1927) 27 SR (NSW) 241: In the Will of Smith (1965) Qd R 177.
30. Rayle v Harris [1895] P 163: Re Alice [1960] VR 481: In Re Robertson (1972) 2 SASR 481.
31. In the Will of Maroney (1928) 28 SR (NSW) 553; In re Roberts (1928) SASR 175.
32. Eg Harvey J in Estate of Roffe (1920) 20 SR(NSW) 632 at 634.
33. Mellows, The Law of Succession (1977) 3rd ed. p75.
34. [1974] 1 All ER 493.
35. (1969) 89 WN (Pt 1) (NSW) 641.
36. Hardingham Neave and Ford. note 16 above. p32
37. Re Groffman [1969] 1 WLR 733:[1969] 2 All ER 108.
38. See cases cited in Theobald on Wills 14th ed (1982) p44 and 35 and Hardingham, Neave and Ford. note 16 above, p39 n 44.
39. In the Estate of Gibson [1949] P 434.
40. Hudson v Parker (1844) 1 Rob Ecc 14 at 24 per Dr Lushington, cited in Will of Morgan [1950] VLR 335 at 337-8 per Dean J.
41. In the Goods of Gunstan (1882) 7 PD 102.
42. In the Will of Morgan [1950] VLR 335: In re Groffman note 37 above.
43. In re Groffman note 37 above.
44. See Casement v Fulton (1845) 5 Moo PC 130 (13 ER 439) and The Fourth Report of the Real Property Commissioners (1833) pp17- 18.
45. In the Goods of Eynon (1873) LR 3 P & D 92.
46. In the Goods of Maddock (1874) LR 3 P & D 169.
47. Sweetland v Sweetland (1865) 4 Sw & Tr 6 (164 ER 1416); Re Beadle [1974] 1 All ER 493.
48. In the Estate of Bercavitz [1962] 1 All ER 552.
49. Casson v Dade (1781)1 Bro CC 99(2 ER 1010): Carter v. Seaton (1901)85 LT 76: In the Will of Callow (1918) VR 406.
50. As to privileged testators see generally Chapter 11.
51. The presumption may he rebutted by internal evidence on the face of the document or extrinsic evidence such as the observations of an attesting witness.
52. In Will of Phillips (1932) 50 WN (NSW) 2; Re Delves 1 VLR (IP & M) 33.
53. Re Sanders (1944) SASR 22; Re Melver [1975] Qd R206.
54. Re O’Connor (1934) QWN 18: In Will of Riddell (1880)6 VLR (IP & M) 5.
55. In Goods of Horsford (1874) LR 3 P & D 211.
56. In Goods of Itter [1950] P 130.
57. Eg Soar v Dolman (1842) 3 Curt 121 (163 FR 675) where the original amount of the legacy was restored.
58. In Goods of James (1858) 1 Sw & Tr238 (164 FR 709).
59. As to the doctrine of dependent relative revocation. See Hardingham, Neave & Ford. note 16 above, para 612.
60. [1950] P 130.
61. See, generally In Will of F J Page [1969] 1 NSWLR I and Geddes & Rowland. Revocation by later will: relevance and proof of intention (1984) 58 ALJ 186. Compliance with the requisite formality (eg total destruction) without there being an actual intention to revoke will not be enough see eg Re Wright [1970] QWN 28: Lippe r Hedderwick (1922) 21 CLR 148.
62. Wills, Probate and Administration Act. 1898. s16.
63. Section 15 deals with revocation by marriage. Despite the mandatory terms of s17(1), semble there is one additional means of partial revocation An intentional obliteration of part of a will which leaves the original words non-apparent is a valid alteration and probate will be granted with the obliterated parts being left blank: 518(1): In Goads of James (1858) 1 SW & Tr.238 (164 ER 709). Arguably this falls within 517(3)(b) (destruction”).
64. As to privileged testators. see Chapter 11.
65. Gulliver and Tilson, Classification of Gratuitous Transfers (1941) 51 Yale LJ p3.
66. Gulliver and Tilson. Classification of Gratuitous Transfers (1941) 51 Yale LJ 1: Fuller. Consideration and Form (1941) 41 Cal FR 799: Fangbein. Substantial Compliance with the Wills Act (1975) 88 Harv LR 489: Nelson and Starck, Formalities and Formalism: A Critical Look at the Execution of Wills (1979) 6 Pepperdine LR 331.
67. For the meaning of the term, see para 2.11
68. Note 65 above, p351.
68. Fuller, note 65 above. p801.
70. Law Reform Commission of British Columbia. Report an the Making and Revocation of Wills. (1981) p25.
