Analysis of the Law of Will

Analysis of the Law of WillWhen a person dies leaving their blank space, the question ordain definitely arise as to how his or her property or the three estates will be dealt by those who survived them. Intestacy rules1 applies when a person dies without leaving will but makes no provision for cohabitants and their children and friends. The impartiality of wills be more favourable which allows a person to write a will that authorize their estate to be distributed according to their own wishes. Besides being able to specify own funeral arrangement and notify guardianship of the abutting kin, a will digest overly help to reduce the amount of inheritance Tax that may be payable on the value of the property one leave behind. A will must be valid and can only run after the death of the testator or testatrix.A testator must be over the age of 18 and have a necessary capacity2, with capacity being defined as being of sound mind, memory and understand the extent of the property of which he is disposing3 to write a will. thusly a blind person cannot be a witness.4 Surprisingly in Wilson v Beddard,5 a 14 years old boy was given the immenseness of witnesses in the will-making process. It could be argued that no particular maturity of years is required to witness a tinge but that undervalue the function of the witness.6 Borkowski in his aspect thinks that the want that witnesses to wills should be of adult age.It is also important for testator to comply with the fates under section 9 of the Wills telephone number 18377 in order to make a valid will. One advantage of this is formality of writing can pr in timets fraud. Over the time, courts have adopted a very broad approach towards this requirement. Wills written in bad Ukrainian have been accepted by the courts in Re Slavinskyjs Estate8 nerve, will written on an eggshell9 or even in the code utilize by jeweller in the course of his business were accepted by the courts.10 The courts approach appears to a ccept anything that is a written manifestation of the testators determinations concerning the disposition of his or her estate on the death may be regarded as a will.11Second requirement being a will must be signed with an aim to give effect to the will. The courts have accepted any mark or marks think to represent a signature in Re racy (1851)12 case. In Re Stalman13 the will was written on a single piece of paper and the testatrix signed at the top of the paper. The Court of Appeal held that the signature was ineffective and the will invalid. The leading case, In the Goods of Chalcraft 194814 where the testatrix was extremely in pain and frail, she was given the will she drafted to sign, but could only able to complete E. Chal rather than E. Chalcraft ahead lapsing into unconsciousness and died. Willmer J. thought that Lord Campbells words should be given a broad interpretation and that, in the circumstances, the will was validly signed because what she wrote was intended by her to be the best that she could for by way of writing her ready.Contrast with a more uprightly flexible interpretation by Lord Campbell LC in Hindmarsh v Charlton (1861)15 stated that there must either be the name or some mark which is intended to represent the name. Although this was an understandable decision on the facts, the test applied by Willmer J. was not supported by other authority and is, in any case, open to the objection that it is too vague and imprecise.16 The think attached essence to the fact that the testator complete his signature after the nurse left the room. His reasoning appears to have been that writing part of a name cannot amount to a signature where the testator goes on to complete the signature. The problem with this approach is that it imposes an unduly narrow meaning on signature by compare it with completed signature. These difficulties can be prevented by taking a wider approach of the meaning of a mark while focusing on the intention of the test ator.The requirement of aim is an important one as in section 9, which signature must wither be made or acknowledged in the presence of two witnesses and the witness must attest and sign or acknowledge his or her signature in the presence of the testator. The case of Brown v Skirrow 190217 demonstrates that the division of presence means both mental and material presence. As regards mental presence, the testator and the witnesses must be aware and mindful of the act done. Nevertheless, the cases on physical presence has raised the odd rule that it is sufficient if there was a line of sight at the relevant moment. For instance, it is sufficient for testator to see the witnesses signing, even if the testator did not look at what they were doing at that moment. There is obvious potential for fraud and undue influence in such a case although these possibilities may seem to contradict by the insistence on the testators direction, they cannot be depreciated.The line of sight test can not be critically defended. In Langbein seminal article, square(p) Compliance with the Wills Act,18 he argued that formalities had four main functions in will-making in which requiring the presence of the participants to the making of a will arguably serves all these purposes, especially the exemplary and the protective functions it attracts attention to the importance of the matter and supply vital checks that the statutory requirements are being achieved.Section 9(1)19 allows some other person to sign on behalf of the testator providing this is done in the presence and by the direction of the testator. The main reason for this provision was to provide for the case of the illiterate testator, but the leading target area now must be to help the testator who cannot sign because of illness or disability although he must be at least heart-to-heart of giving direction. As it is, there would appear to be nothing to invalidate a will signed by some other person on behalf of a perfectl y fit testator. Borkowski20 suggested to amend the relevant part of section 9(1) to read or by some other person in his presence and by his direction where the testator is unable to sign the will because of illness or disability. Borkowski also argues that the number of witnesses should be increased. Two witnesses could easily be so intimately connected as to be able to collude in their evidence as may be the situation with the friendly couple next door.21The failure to date a will will not make a will invalid as there is no statutory requirement for a will to be dated. Waite LJ stated in Corbett v Newey22 Lack of a date or the inclusion of the wrong date cannot invalidate a will.23 However, dating a will convenience judges to decide dos concerning the testators capacity to produce a will. Besides, interpretation of a will such as references to persons and property can depend on the date of execution.24 Moreover, testator might leave more than one will thus the date of the will wi ll be used to determine the order of execution.On 22 January 2014, the Supreme Court handed down its decision in the case of Marley v Rawlings.25 One of the issue arise is rectifying a will under section 20 of the Administration of nicety Act 198226 which was introduced on the recommendations of the Law Reform Committee.27 Under this provision, a will is rectifiable but in Marley case, the respondents argues that the physical mix-up of the documents meant that Mr Rawling had not signed a will for the purpose of section 20. Since section 9 of the Wills Act28 require a will to be signed in order to be valid, it was argued that this will had not being signed by the testator and therefore no intention to give effect to the said provisions. As Lord Neuberger PSC said, it is logical to deal with the validity and rectification issues together, at least in a case such as this, where the two issues are so closely related.29In conclusion, the law of will should be reformed to make a clearer and distinct rules as they are used by majority and for vital task such as wealth distribution upon death. Good news is that the Law Commission announced on 23 July 2014 that it expects to start its project on the reform of the law of wills in early 2015 with a view to publishing a report with final recommendations and a draft Bill in early 2018.30 Borkowskis recommendations for section 9 of the 1837 act would probably results in more failure in will, prima facie, but would also save some application of a dispensing power. However, it is obvious that the Parliament is putting efforts in improving the law of will.1 Administration of Estates Act 1925, s 462 Wills Act 1837, s 73 Sir Alexander Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at p.5644 Re Gibson 1949 P. 4345 Wilson v Beddard (1841) 12 Sim. 28, 59 E.R. 10416 Andrew Borkowski, Reforming section 9 of the Wills Act (Conveyancer and prop Lawyer 2000)7 Wills Act 1837, s 98 Re Slavinskyjs Estate 1989 53 SASR 2219 Hodson v Barnes (1926) 43 TLR 7110 Kell v Charmer (1856) 23 BEAV. 19611 Catrin Fflur Huws, Text, Cases and Materials on truth and Trusts (1st edn Pearson 2015) p.36912 Re Savory (1851) 15 Jur 104213 Re Stalman (1931) 145 LT 33914 In the Goods of Chalcraft 1948 1 All ER 70315 (1861) 8 HL Cas. 160, 16716 Andrew Borkowski, Reforming section 9 of the Wills Act (Conveyancer and airplane propeller Lawyer 2000)17 1902 P 318 John Harriss Langbein, Substantial Compliance with the Wills Act (88 Harvard Law Review 489, 1975)19 Wills Act 1837, s 9(1)20 Andrew Borkowski, Reforming section 9 of the Wills Act (Conveyancer and station Lawyer 2000)21 ibid22 Corbett v Newey 1996 2 All E.R. 91423 Waite LJ in Corbett v Newey 1996 2 All E.R. 914 at p.92024 Re Whorwood (1887) 34 Ch D 44625 2014 UKSC 226 Administration of Justice Act 1982, s 2027 Law Reform Committee, Interpretation of Wills 19th Report (HMSO, 1973). Cmnd.530128 Wills Act 1837, s 929 Marley v Rawlings 2014 UKSC 2 2014 2 W.L.R. 213 at p6330 Law Commission, Wills Current Project Status http//www.lawcom.gov.uk/project/wills/ accessed on 5 March 2017