Mutual Wills

ULS 2612 Law of Succession
MUTUAL WILLS
INTRODUCTION
This arise when two or more persons agree to make wills in similar terms
and that the survivor will be bound to dispose of his or her estate in a
specified manner.
Testators can make separate wills to this effect, or their wishes can be
effected by a joint will.
Law Reform Committees Definition:-Mutual wills are joint wills in which
the testators not only confer reciprocal benefits on each other but in which
they agree that the survivor shall be bound by the terms of those wills.
Definition is misleading since mutual wills need not confer reciprocal
benefits. Mutual wills also need not be joint wills.
In the case of Re Dale (1993), a married couple made wills in favour of

their children. It was held that the mutual will doctrine can apply even
though the surviving testator receives no benefit under the will of the first
testator to die.
Dixon J in Brimingham v Renfrew (1937):-It is long established that a
contract between persons to make corresponding wills gives rise to equitable
obligations when one acts on the faith of such an agreement and dies leaving
his will unrevoked. It imposes on the survivor a specifically enforceable
obligation. It may be true that this can no compel the testator not to revoke
the testamentary document. But equity will attach obligation to the property.
Survivor therefore becomes a constructive trustee and the terms of the trust
are those of the will which he undertook would be his last will.
Imposition of constructive trust on the testator cannot prevent him from

revoking the will. However, if he does revoke the will, his intentions will be
frustrated by the operation of the trust in favour of the beneficiaries under
the mutual will.
Lord Camden in Dufour v Pereira (1769):-It is a contract between t he

parties which can not be rescinded, but by the consent of both. The first that
dies carries his part of the contract into execution. Will the courts afterwards
permit the other to break the contract? Certainly not.
THE AGREEMENT
For this doctrine to apply, it must be shown that the wills were made in
pursuance of an agreement by the testators as to the disposal of their
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property. Also, that they agreed that the survivor was bound by the
agreement. The terms must be clear and unequivocal (Walpole v Warford)
and the agreement must be intended to be legally binding.
Vital to show that the wills were made in pursuance of an agreement not to
revoke them.
Mere evidence that the wills were made in similar terms and at the same
time is in itself not conclusive proof that they were intended as mutual wills.
In Re Oldham (1925):-a married couple made wills on almost identical
terms and at the same time, each giving property to the other absolutely with
the same alternative provisions in case of the predecease of the other. The
husband died first and the wife made a new will departing entirely from the
original will. The courts held that there was no mutual will because there
was no proof that the wills were made in pursuance of agreement not to
revoke them. The fact that the two wills were made in identical terms does
not necessarily connote an agreement beyond that of so making them.
In Re Cleaver (1981):-Nourse J emphasised that the mere simultaneity of

wills and the similarity of their terms was not enough to establish the
necessary agreement. These factors were however a relevant circumstance
that must be taken into account. There must be clear evidence on a balance
of probabilities of the necessary agreement. In this particular case, the Judge
found such evidence (of an agreement), including evidence of conversations
of the testators with neighbours, family and friends.
In Re Goodchild (1997):-the evidence showed that the each testator, the
husband and the wife, EXPECTED that the other would ensure that the
couples son would benefit was not enough. The Court of Appeal reiterated
that there must be evidence of a contractual agreement that both wills were
irrevocable and due to insufficient evidence of such an agreement in this
case, there is no mutual will.
In cases of doubt, the courts will lean against a finding that the agreement
existed. This is because the doctrine of mutual wills constitutes a restriction
on the freedom of testators to dispose of their property as they wish.
THE CONSTRUCTIVE TRUST
The constructive trust arise when the first of the mutual testator dies
without revoking his will. The death of the first mutual testator is the
determining event because he carried his part of the agreement into
execution.
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A gift to a beneficiary who survives the first testator but predeceases the
surviving testator, does not lapse.
In Re Hagger (1930):-a married couple executed a joint mutual will in

which they left property to each other for life and the remainder to named
beneficiaries. One of the beneficiaries, survived the wife (the first to die) but
predeceased the husband.
The issue was whether the beneficiary took a vested interest in the
remainder when the wife died. It was held that the trust arose at the death of
the wife and as such, the interests passed to the beneficiarys estate.
POSITION OF THE SURVIVOR
Note also that though the constructive trust applies if the testator revokes
his will, this does not prevent him from disposing his property inter vivos.
The trust would basically cover all the property of the survivor at his death
unless the original agreement shows a contrary intention.
The survivor is prima facie free to do as he pleases with his property

provided he does not revoke his will. And if he does revoke his will, the
trust operates only in respect of his property, if any, at his death.
Dixon J in Birmingham v Renfrew:-The purpose of an arrangement for

corresponding wills must often be, as in this case, to enable the survivor
during his life to deal as absolute owner with the property passing under the
will of the first party dying. That is to say, the object of the transaction is to
put the survivor in a position to enjoy for his own benefit the full ownership
so that, for instance, he may convert it and expend the proceeds if he choose.
But if he dies he is to bequeath what is left in the manner agreed upon. It is
only by the special doctrines of equity that such a floating obligation,
suspended, so to speak, during the lifetime of the survivor, can descend upon
the assets at his death and crystallise into a trust. No doubt gifts and
settlements, inter vivos, if calculated to defeat the intention of the compact,
could not be made by the survivor and his right of disposition, inter vivos,
is, therefore, not unqualified.
This means that the survivors power of disposition is restricted to the extent
that the survivor must avoid transactions that are calculated to defeat the
compact. Nourse J in Re Cleaver interpreted this to mean the restraining of
large voluntary dispositions but not ordinary gifts of small value.
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REVOCATION DURING JOINT LIVES
If the mutual will is revoked prior to the death of any one of the testator, the
mutual will doctrine has not application because revocation occurred before
the constructive trust arise.
In Stone v Hoskins (1905):-a married couple made mutual wills. The wife
subsequently made new wills without the knowledge of the husband. On her
death, the husband argued that the courts should pronounce against the new
wills, or, alternatively, that the executors of the new wills should hold the
property of the testratix in trust for the beneficiaries under the mutual will.
The courts rejected the argument.

Perhaps, the non revoking testator can sue for breach of contract.
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CHAPTER 3 MAKING A WILL : FORMALITIES (PART 1)
Section 5 : Wills Act 1959 5. Mode of execution.

(1) No will shall be valid unless it is in writing and executed in manner
hereinafter mentioned.
(2) Every will shall be signed at the foot or end thereof by the testator or
by some other person in his presence and by his direction; such
signature shall be made or acknowledged by the testator as the
signature to his will in the presence of two or more witnesses present
at the same time, and such witnesses shall subscribe the will in the
presence of the testator, but no form of attestation shall be necessary:
Provided that every will shall, as 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 under this section 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 circumstance-
(a) that the signature shall not follow or be immediately after the foot or
end of the will; or
(b) that a blank space shall intervene between the concluding word of the
will and the signature; or
(c) that the signature shall be placed among the words of the testimonium
clause or of the clause of attestation, or shall follow or be after or under
the clause of attestation, either with or without a blank space intervening,
or shall follow or be after, or under, or beside the names or one of the
names of the subscribing witnesses; or
(d) that the signature shall be 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 shall be written above the signature; or
(e) that there shall appear 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,
and the enumeration of the above circumstances shall not restrict the
generality of this proviso; but no signature shall be operative to give
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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.
A will must be in writing

A will is invalid unless it is in writing.
Note however that there are exceptions to this rule with regards to a
privileged testator (Section 26 Wills Act)
It can be argued that to allow non-privileged testators to make oral wills
might create uncertainty and give rise to litigation because of the
difficulties of proving and interpreting oral statements.
The Wills Act does not define the meaning of being in writing.
Writing would include typing, printing, lithography, photography and
other modes of representing or reproducing words in a visible form.
In the Goods of Adams (1872), it was held that if a will is partly in
pencil and partly in ink, it would be presumed that the pencil was only
intended as a draft. That would mean that the pencil part will be excluded
from the will unless there is evidence that they were clearly intended by
the testator to be part of the will,
As to the language used, a will can be written in any language provided
that there is reliable evidence as to what the language means.
In Whiting v Turner (1903), a French testatrix made a will in France
headed Mon Testament and written in French. The will was correctly
executed under English Law and could thus be admitted to probate.
In Re Berger (1989), documents written in Hebrew were held to
constitute a will. The test is whether the writing is decipherable. If it is,
then S5 is satisfied.
In Kell v Charmer (1856), the testator left to one son the sum of i.x.x.
and to another the sum of o.x.x. . These were private symbols used by
the testator in his jewellery business to denote prices or sums of money.
Extrinsic evidence was admissible to show that the symbols represented
100 and 200 Pounds respectively. Will was upheld.
If the testator provides his own dictionary in his will as to the
meaning of his/her writing, there will be no need to resort to extrinsic
evidence.
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As to the issue of the material to be used for the writing to appear on,
again S5 is silent as to this. Cases however suggests that any material
would suffice provided that a permanent form of visual representation
results.
In the Estate of Murray (1963), a will made on a small piece of
cardboard during a snooker game was upheld.
Note the case of Hodson v Barnes (1926). The testator worked as a
pilot on the Manchester Ship Canal. He regularly ate eggs for lunch
while at work. After his death, the empty shell of a hens egg was
discovered in his bedroom on which his alleged will was written in his
handwriting. Though the will was rejected for lack of animus testandi,
the use of the egg-shell was not thought to be fatal to the validity of the
will, though the judge described it as grotesque.
As to the next issue of the application of modern technology, there
seems no objection in principle in allowing videos or even floppy disks
to be used as evidence of the contents of a will. But a video or a disk by
itself cannot be regarded as being in writing. The video must be
transmitted through another medium such as television. Similarly, a
printout from the diskette may amount to writing for the purposes of this
section.
Finally, there are generally no restriction on the size of the materials
used. A large plank of wood or a small piece of paper would be valid. In
some common law jurisdictions, wills written on stepladders, stable
doors and tractors have been said to be valid.
CHAPTER 3 MAKING A WILL FORMALITIES (PART 2)
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Signed by the Testator

The Signature
What is the signature? Lord Campbell in Hindmarsh v Charton (1861) :
there must either be the name or some mark which is intended to represent
that name.
Thus, it would be sufficient to use a stamped name or a seal intended as a
signature.
In the Goods of Redding (1850), the testatrix, whose name was Charlotte
Redding, executed a will in the name of Charlotte Higgins. She had used
that name for several years. She later altered the name in the will to Redding
but the alteration was invalidly executed. The will was nevertheless upheld
as it was since Higgins constituted the mark of the testratix.
In the Estate of Finn (1935), a smudged, inky thumb-print which produced a
mere blot on the will was held to be sufficient. Here, the testator was
illiterate and the judge accepted that the mark was intended by him as his
signature.
Note that even if the testator can sign normally but chose instead to use a
mark, S 5 can be satisfied provided the mark was intended to represent his
signature (Baker v Dening 1838)
In the Estate of Cook (1960), the testatrixs will ended, Please Leslie be
kind to Dot. Your loving mother. The judge held that the will was a valid
will and had been validly signed as the words Your loving mother were
meant to represent the name of the testatrix.
Though the judge purported that he was applying the test in
Hindmarsh v Charlton, this is rather arguable. The testatrix neither
wrote a name or made a mark.
Again problem arises because the cases does not seem to
distinguish situations where the testator can not write their name
maybe due to some permanent incapacity, and those who can but
chose not to.
The will is nevertheless not regarded as signed if the testator did not
complete what he intended to write.
In Re Colling, the testator attempted to make a will while in hospital.
He started to sign the will in the presence of a patient in the next bed and
the ward-sister. The sister had to leave to attend to another patient before
the testator completed signing. It was held that the will had not been
validly signed in the presence of both witnesses since the testator had not
completed what he intended to do i.e. to sign the will.
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However, in Re Chalcraft, the signature was held to be valid. Here,

the testatrix was close to death when she was handed a codicil to sign.
She had been given a large dose of morphine shortly beforehand. She
started to write her name but was unable to complete the signature
because of her weak condition. She wrote E. Chal instead of E.
Chalcraft. Willmer J held that the codicil was valid : this lady was
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.
The test whether the testatrix did the best she could do may lack
precision.
Could not it have been possible in Re Colling to argue that he did the
best he could do up to the sisters departure? And could not the little he
has signed be intended as his mark so as to represent his name?
In situations where the testator is too weak to sign unaided, the courts seem
to allow the signature to be valid. Case Wilson v Beddard.
Attachment
There may be difficulties if the will consist of two or more sheets of paper.
Must the testator sign on every sheet? The rule used to be that all the sheets
had to be attached or connected at the moment of execution. This was to
minimise the possibility of fraud.
In Re Little, the testators will consisted of five sheets of paper. He signed
the fifth sheet which at the moment of execution, was covering the other
sheets. It was held that since the five sheets were pressed together when it
was signed, there was sufficient nexus between them to form a single will.
Note also the case of In the Goods of Mann.
Some other persons in his presence and by his direction
Note that Section 5 allows some other person to sign the testators will on
his behalf. One issue is whose name should the person signing sign on the
will? In the Goods of Clark, the testator was very closed to death and had
requested the vicar attending to him to write out a will on his behalf and to
sign it. The vicar signed his own name. It was held to be valid.
Some other persons

The Act does not define the capacity required of the person signing on
behalf of the testator. For example, must he be capable of appreciating that
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he is signing a will? Also, is there a age requirement. Minors can not make
wills and as such, can they sign on someones behalf? In Smith v Harris, it
was held that an attesting
Witness can sign on behalf of the testator. Since minors can act as witnesses,
minor can therefore be argued to qualify as some other persons.
As to presence, it should mean both physical and mental presence.
There is also some confusion as to the term direction. Need there be some
positive act on the part of the testator for there to be direction?
How if the testator is too ill to sign and may therefore be too ill to give
directions? Also, must the direction be contemporaneous with the signing?
Another issue would be whether an able testator can ask someone to sign on
his behalf.
Signature intended to give effect to the will

Note that the Wills Act in the UK had been amended by the
Administration of Justice Act 1982. The old requirement is that the will
should be signed at the foot or end of the will. Today, the test is
whether the testator intended to give effect to the will.
Note the case of Weatherhill v Pearce.
As far as Malaysia is concerned, the phrase intended to give effect to
the will is also mentioned in the Wills Act.
It must be emphasized that the question is not what the testator
intended but what he intended by his signature at the time he signed the
will (Re White).
Note also that in the UK, a will may be valid even if the testator had
signed at the top of a sheet of paper and then writes out his will.
This occurred in the case of Wood v Smith. It was held that extrinsic
evidence could be used to prove the intention to give effect to the will.
Contrast this with the position in Malaysia.
As for cases where the testator signs on the envelope, whether or not
that constitutes a valid signature depends on the testators intention.
Contrast the cases of In the Goods of Mann and In the Estate of Bean.
The same approach was also adopted in Re Beadle.
S 5 Signature made or acknowledged in presence of witnesses

Introduction
S 5 states that the signature must be made or acknowledged by the
testator in the presence of two or more witnesses present at the same
time.
10
The need for at least two witnesses is aimed at minimizing the

likelihood of forgery or undue influence. It may however cause
difficulties in practice.
A few issues to be considered here i.e., the capacity of the witnesses
to act as witnesses, the need for the testator to either sign or
acknowledge his signature in their presence, and the necessity that their
presence should be simultaneous.
Capacity to act as witness

The Act seems to be silent as to who can act as a witness. All it
requires is the presence of the witnesses.
Dr. Lushington stated in Hudson v Parker (1844) that witnesses
should see and be conscious of the act done, and be able to prove it by
their own evidence.
To be conscious of the act done requires the witnesses to be at least
mentally aware that there is an act which constitutes the signing or the
acknowledgement which takes place in their presence.
It was also held In the Estate of Gibson (1949) that a blind witness
would not be a valid witness because the witness must be able to
physically see. Note however that a blind witness can however be a
witness if the will was signed in braille and was acknowledged by the
testator to the witness.
The Act also does not provide for a minimum age for a person to act
as a witness. Therefore, minors can act as witness provided they satisfy
the other requirements of the Act.
In Wilson v Beddard (1841), a 14 year old boy was accepted as a
valid witness. The testator was so ill that his hand had to be guided to
make the mark which was intended to be his signature.
Note also that witnesses may sometimes be required to give evidence
after the testators death. However, it is mentioned in S. 9 that the will
is not invalid merely because the person who attest to the execution of
the will shall at the time of the execution thereof or at any time
afterwards be incompetent to be admitted as witness.
This is rather curious since it allows a will to be valid even if the
witness is incompetent and may be defeating the requirement that the
will has to be witnesses.
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Signature made in presence of witnesses

Presence here means both mental and physical presence.
Mental Presence
The witness must be conscious of the act done.
Gorell Barnes J in Brown v Skirrow (1902) stated: 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, the witness should be able to say with truth, I know that
this testator or testatrix has signed this document .
Note that the witnesses need not know that the testator is signing a
will. Neither need they know what the testator is writing. The witnesses
need only be conscious of that there is an act of writing by the testator.
In Smith v Smith (1866), the witnesses saw the testatrix writing
something on the will but did not know that it was a will. Neither did
they see what the testatrix wrote. The will was upheld because the
witnesses were aware that the testator was writing something (which
the judge was satisfied was the signature).
Physical Presence
The test is whether the witnesses could have seen the testator signing,
in the sense of having the opportunity to see and not whether they
actually saw the signing.
There must be an unobstructed line between the witnesses and the
testator at the moment of the signing of the will.
Note the case of Brown v Skirrow on the issue of mental and physical
presence.
In this case, the testatrix took her will to a local grocers shop in order
to sign it there. She did so observed by a shop assistant. When she did
so, the other witness, the manager, was engaged with a traveller who
was standing between the manager and the testatrix. At that moment,
the manager had no idea what the testatrix was doing. It was only a
little later that he was asked to sign the will as a witness.
Was the witness present when the testatrix signed the will?
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The court held that the will was invalid. The manager could not have
seen the testatrix signing since his view was obstructed by the traveller.
Also, the manager was not mentally present since he was not conscious
of what was happening.
Acknowledgement in present of witnesses

If the testator does not sign in the presence of the witnesses, he must
acknowledge in their presence.
Acknowledgement
The testator must demonstrate that he accepts or recognises the
signature as his own.
The acceptance of the signature may take several forms. The most
obvious words will be that is my signature. It was however held in
Hudson v Parker (1844) that the phrase that is my will, will also
suffice. Note Dr. Lushingtons statement.
It has also been decided that a request by the testator for witnesses to
sign his will constitutes an acknowledgement.
In Weatherhill v Pearce, the testatrix went to the home of two friends
and asked them to sign her will which ended with an attestation clause
containing her signature. The two friends knew that it was a will. The
will was held to be valid.
It has also been decided that even if the witnesses did not know that
they were signing a will, the will is still valid, Note the case of Keigwin
v Keigwin (1843). A request for the witnesses to sign the document
before them suffices.
It also seems that the acknowledgement can be valid even if the
testator does not say anything at all. A mere gesture may be sufficient.
In the Goods of Davies (1850), evidence that the testatrix pointed to her
will and by gestures intimated that she had signed the same was held to
amount to acknowledgement.
Presence
The witness must be mentally and physically present when the
testator acknowledges his signature.
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Mental presence means that the witnesses must be conscious of the

act done i.e. aware of the words or conduct of the testator that
constitutes the acknowledgement. But they need not realise that it is a
will that is being acknowledge.
Physical presence means that the witnesses should see or have the
opportunity of seeing the testators signature. Note the explanation by
Brett LJ in In the Goods of Gunstan (1882). There must be a line of
sight between the signature and the witnesses at the moment of
acknowledgement.
Note the cases of Re Groffman (1969) and Daintree v Butcher (1888).
Present at the same time

S. 5 requires at least two witnesses to be present at the same time
when the testator signed or acknowledged his will.
This is to prevent fraud and to provide more reliable evidence of the
testators capacity.
In the case of Weatherhill v Pearce, the testatrix had acknowledged
her will in the home of the two witnesses. The question is whether the
witnesses had been present at the same time. The front door opened
directly into a large room which took up virtually the whole of the
ground floor. The acknowledgement took place on that floor. The judge
thought it highly likely that all three ladies were at some time present
together in the large ground floor room. There was also evidence to
suggest that the witnesses were not at some stage together with the
testatrix to witness the wills execution. The will was upheld.
Note the contrasting case of Re Groffman where it was held that the
will was not valid because the witnesses were not present at the same
time. Here, the action failed because there was evidence that
simultaneous presence was lacking.
S 5 The Witness
What must the witness do?
S. 5 ,read as a whole, seems to lay down a chronological order of
events that must be followed. The testator must first complete signing
or acknowledging his signature in the simultaneous presence of at least
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two witnesses. The witness must then subscribe to the will in the
presence of the testator.
This means that if a witness were to sign the will before testator has
completed the first stage, the will is invalid. Note the cases of Wyatt v
Berry (1893) and Re Davies (1951).
Subscribe to the will i.e. to attest and to sign

Each witness must attest (meaning to witness the signature or the
acknowledgement of the testator) and sign the will.
As regards the signature of the witness, the rules are similar to those
for the signature of a testator. The witness must make a mark intended
to be his signature. Case : In the Goods of Sperling.
The witness must also sign personally. Another person can not sign on
behalf of a witness unlike the position of a testator. It is however
possible for the hand of the witness to be guided by another person (In
the Goods of Lewis - 1861).
As to the position of the signature, S. 5 does not specify where the
witness should sign. Generally, it can be anywhere as long as it was
intended to attest the testators operative signature. Even if the
witness's signature are not on the same paper as that of the will, it can
be valid provided that they are physically connected with the will.
Note the cases of In the Goods of Braddock (1876) and In the Goods of
Hatton (1881).
The witnesses must also sign with the intention that their signatures
should be an attestation of the testators signature. The presumption is
that a person who signs the will is a witness if not the testator.
Finally, the witness must attest the testators operative signature, i.e.
the one purported to execute the will.
Note also that the Wills Act in the UK expressly allows for a witness
to acknowledge his signature (presumably to the testator since the Act
requires the presence of the testator when the witness is subscribing to
the will.) S 9 (d) (ii) as amended: Case : Couser v Couser. What about
the position in Malaysia?
Presence of the testator
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S. 5 also requires a witness to subscribe to the will in the presence of the

testator. Here, the testator must be mentally and physically present (similar
as singing in the presence of witnesses).
Mental Presence
The testator must be conscious of the act done by each witness i.e.
their signing.
The will fails if the testator looses consciousness before the witnesses
complete their singing of the will. In Right v Price (1779), the attestation by
the witness was invalid because it was attempted while the testator was
insensible. Contrast this case to Re Chalcraft.
Physical Presence
The testator must have seen or had the opportunity of seeing the witnesses
sign at the moment when they did sign.
The same line of sight rule will apply. In Shires v Glascock (1688), the
testator asked the witness to go to another room to attest his will. In that
room was a broken window through which the testator could see the
attestation. The execution was held to be good
since the signing was in the view of the testator: he might have seen it, and
that is enough.
The opportunity to see means that the testator must have been able to see, if
he had chosen to look, from the actual position he was in when the
attestation occurred. Case : Norton v Bazett (1856).
Other cases to note : Tribe v Tribe (1849) and Casson v Dade (1781).
As for blind testator, cases seems to suggest that a blind testator is to be
attributed with notional vision. The test is whether the testator, had he
possessed sight, could have seen the witnesses signing their signatures.
Case: In the Goods of Piercey (1845).
Presence of other witnesses

The Wills Act in UK expressly provides that the witnesses need not
sign in the presence of each other.
As for Malaysia, the Act is silent as to this.
But is can generally be argued that if one witness signs after te other
had signed and left, the will should still be valid as long as it was
signed in front of the testator.
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Finally, no form of attestation is necessary. But such a clause is

desirable. The purpose of such a 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.
Chapter 4 Making a will : Capacity and Intention (Part 1 of notes)

Capacity to make a will
Introduction
17
Having capacity means that a person is legally competent to make a

will.
Two elements here. Firstly, the testator must have attained the
minimum age. Secondly, the testator must possess the necessary level
of mental competence.
Age
S. 4 of the Wills Act provides that no will made by any person under
the age of majority shall be valid.
The Age of majority in Malaysia is 18 years of age.
Note however the issue on privileged wills.
Next issue is whether there should be a maximum age.
Some aged testators may be confused in their thinking even if they
are able to satisfy the test of mental competence necessary to make a
will.
The problem is the difficulty in setting a particular age as the dividing
line.
While there is consensus as to when minors reach an age where they
can be regarded as sufficiently mature, no such consensus exist as to
when old age begins to diminish the mental faculties.
One possible argument is to require persons of a certain age, say 80 or
85, to acquire a doctors certificate as to their mental competence in
order for them to make a will. Problem may still arise in emergency
or death-bed situations.
Mental Competence
S. 3 of the Wills act uses the phrase every person of sound mind
The Act nevertheless does not mention the degree of mental
competence necessary to make a will.
Classis test as enunciated in Banks v Goodfellow (1870), Cockburn

CJ: As to the testators 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
18
understand the elements of which it is composed, and the disposition

of his property in its simple forms. In deciding upon the capacity of
the testator to make his will, it is the soundness of the mind, and not
the particular state of the bodily health, that is to be attended to; the
latter may be in a state of extreme imbecility, and yet he may possess
sufficient understanding to direct how his property shall be disposed
of; his capacity may be perfect to dispose of his property by will, and
yet very inadequate to the management of other business, as, for
instance, to make contracts for the purchase or sale of property.
The test here is a working guide. It appears that to satisfy the test, the
testator must have a sound and disposing mind and memory. The
four criteria that must be satisfied include:
a) Nature of business: Testator must be aware that he is

engaged in a testamentary act i.e. expressing his wishes,
normally concerning the disposition of property, that will
take effect on death.
b) Recollection of the property: Testator must have a general

awareness of the property he wishes to dispose of and not
every item of his property. In Waters v Waters (1848),
Coleridge J stated that a specific and accurate knowledge
of every atom of his property was not required of the
testator but he ought to know generally the state of his
property and what it consists of . This will be proportional
to the amount of property the testator owns.
c) The objects of his bounty : Testator must be aware of the

existence of persons who might be considered to have a
moral claim on the estate, even if he chooses not to benefit
them. In Harwood v Baker (1840), testator visited the Bank
of England a few days prior to his death. He then executed
a will in which he left all his property to his wife. Some
relatives were left out. The will was invalid. It was held
that the testator was too ill to give sufficient consideration
to the potential claims of his relatives. Erskine J held : 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
19
bounty, and of deliberately forming an intelligent purpose

of excluding them from any share of his property.
d) Manner of distribution : Testator must be able to recollect

the manner in which the property is to be distributed
between the objects of his bounty. This would require an
understanding of the closeness of his ties with potential
beneficiaries and the nature of their claims in dividing his
estate. In Boughton v Knight (1873), Hannen J stated that
apart from the need to recall fitting objects of the
testators bounty, a testator had to have an understanding to
comprehend their relationship to himself and their claim
upon him.
Note that today, due to advancement in medical science, lack of

mental capacity is broadly divided into two grounds i.e.
(i) failure of the mind to develop sufficiently to entertain the notion of
making a will and
(ii) where there is mental impairment. The former arises in persons
born with very limited mental capacity. The latter may be present for
various reasons e.g. dementia, delirium, physical illness and
psychosis.
Dementia is rather common and frequent amongst older people and
leads to memory disorder. Nevertheless, finding of dementia is not in
itself sufficient to lead to a finding of lack of mental capacity.
The test in Banks v Goodfellow is however still applied by the courts
as the indicator of the level of mental competence required. In Wood
v Smith (1992), testator was 82, made a will two days before death.
There was evidence that the testator was confused and incoherent.
The courts held that there was insufficinet evidence that the testator
was able to comprehend the extent of his property or the nature of the
claims of those he was excluding.
Also, not every form of mental illness is fatal (Banks v Goodfellow).
For e.g. in Brown v Pourau (1995), though the testatrix was
occasionally subject to trances in which she talked to spirits and
fairies because she believed a Maori curse had been placed on her, her
will was still valid.
One last point, the complexity of the will may also determine whether
a testator is competent under the Banks v Goodfellow rule. In the
Estate of Park, testator was 78 and had suffered two strokes. Was also
unable to look after his financial affairs. Was previously a successful
businessman but became forgetful and confused. He decided to marry
20
a cashier at the club whom he hardly knew. They got married and the
testator executed a new will at the reception following the wedding.
He died a few days later. The will was a complicated will, It was held
that thought he marriage was valid, the will was not on the grounds of
lack of mental capacity. The courts drew a distinction between simple
and complicated wills and implied that the mental competence
required would differ accordingly.
Testator can be capricious

It is not a rule that the testator must make a sensible will. Even if the
will is eccentric, it is valid as long as the test in Banks v Goodfellow
is satisfied.
Hannen J in Boughton v Knight : 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.
Knight Bruce VC in Bird v Luckie (1850) : no man is bound to
make a will in such a manner as to deserve approbation from the
prudent, the wise, or the good. A testator is permitted to be capricious
and improvident, and is, moreover, at liberty to conceal the
circumstances 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.
Examples of capricious wills include William Shakespeare leaving
his wife his second best bed. Henry, the Earl of Stafford, described
his wife as the worst of women and guilty of all crimes and left her
five and forty brass halfpence which will buy a pullet (fowl) for her
supper.
Although eccentricity is allowed, their validity may be more difficult
to establish for lack of mental competence.
Delusions
Delusion is an irrational belief which cannot be eradicated by
rational argument.
The will may be invalid under such circumstances.
Not every delusion will negate testamentary capacity. Only
delusions that may influence the testator in making his will or
prevent him from being Banks v Goodfellow competent.
In Dew v Clark (1826), testator gave his only child a small gift out
of his large estate. He treated her with great cruelty in her youth
21
and described her as a fiend, a monster Satans special property

and a very devil. Evidence however showed that she was of
exemplary character. Will was invalid since it was influenced by
testators delusion.
In Boughton v Knight, testator left bulk of his estate to strangers.
Will was invalid because of testators insane dislike for his son.
Note that these cases does not mean that a testator cannot leave his
property to whoever he likes. He can do so provided he is not
under a delusion.
A few cases of delusions include:
Waring v Waring (1848) : testatrix suffered various delusion the most

interesting being that the PM used to visit her house, disguised as a
fish pedlar, in order to have an improper connection with her.
Smee v Smee (1879) : testator believed that he was the son of King
George the IV and his father had defrauded him by preventing him
from benefiting from a trust fund which was diverted to favour his
brothers. His will totally excluded his brothers. Hannen J directed the
jury to find against a will unless your minds are satisfied that there is
no reasonable connection between the delusion and the bequests in
the will. Capacity to make a will
Re Nightingale (1974) : Testator, dying from cancer, cut out his adopted
son who was the principal beneficiary under his will, from his second
will. Courts held that the testator probably thought that the son was
trying to murder him because the son had gently pushed him back onto
the bed when he tried getting up.
Smith v Tebbitt (1867) : Testatrix left bulk of her estate to a Dr. Smith.
Her sister got a small portion. Testatrix believed that she was part of the
Holy Trinity. She was the Holy Ghost and Dr. Smith was the Father. She
also believed that she would give birth to the Saviour, that she was the
Bride of Christ and Virgin Mary and that she would possess Buckingham
Palace and Windsor Castle. She also believed that the final judgment
would take place in her drawing room and that Dr Smith had resurrected
her. Her sister was a child of the devil. Her will was held invalid.
Capacity to make a will
Note however that if the delusion does not affect the making of the will,
the testator would have the capacity. In Banks v Goodfellow, testator left
most of his estate to his niece. She had cared for him and stayed with
him. He was once confined to a lunatic asylum. He was still suffering
22
from two delusion i.e. he was being pursued by devils and evil spirits,
and, that a man long dead still pursued and molested him. He was
however capable of managing his affairs. His will was valid. Cockburn
CJ stated : a degree or form of soundness 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. Note also that it may not be easy to distinguish between a
capricious and a deluded testator. Both make eccentric provisions but the
deluded testator does so due to an irrational belief. But it is not easy to
determine what is a rational person. Also, rationality here is tested by the
outside world, which may not understand the reasons behind a testators
actions.
When must the testator have mental capacity?

Must be mentally competent when the will is executed. Therefore, not
fatal if testator lacked such competency either before or after the will
is executed.
In The Estate of Walker (1912), testatrix was declared a lunatic. She
suffered delusions which made her violent. She however took an
interest in general topics, corresponded with relatives and friends, and
was a shrewd, clever women with excellent memory. Her will made
in the presence of three doctors certifying she was mentally
competent, was held to be valid.
In Chambers and Yatman v Queens Proctor (1840), a barrister was
alleged to have strange and eccentric habits. He suffered form various
delusions including that he was an object of scorn and contempt to his
friends and the whole world. He made a will and committed suicide.
The will was held to be valid.
Note also that if a mentally competent testator gives instructions to a
solicitor as to the making of his will, then loses mental competence
before the will is executed, the will may still be valid. This rule was
enunciated in Parker v Felgate (1883) but applies only if instructions
were given to solicitors.
However in Battan Singh v Amirchand, instructions given to lay
intermediaries to be passed to solicitors were held to be invalid.
The Burden of proof

Parke B in Barry v Butlin (1838) : 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 will
of a free and capable testator.
23
Note however that if the will is rational on its face, the presumption
will be that the testator was competent to make the will. As such, the
evidential burden shifts to the party opposing the will to rebut the
presumption by evidence to the contrary. If such evidence is
forthcoming, the burden of proof then shifts back to the propounder.
In Symes v Green (1859), testator made a will which his nephew
challenged. The testator was presumed to be mentally competent
since the will was rational and properly executed. Evidence was
however produced to show that when he made the will, he was
suffering from insanity. The evidence rebutted the presumption of
mental competence and the burden of proof shifts to the propounder
to proof on a balance of probabilities. Here, the propounder was
unable to proof so on a balance of probabilities.
On the other hand, if the will is irrational on the face, the presumption
would be that the testator lacked the necessary mental capacity.
Presumably though, this is a weaker presumption than in the event the
will is rational on its face. Again, this presumption can be rebutted by
evidence.
In Austen v Graham (1854), testator left a small gift to his brother and
the rest to the Turkish Ambassador to benefit the poor in
Constatinople and to erect a cenotaph in the city with a description of
the testator. The Courts thought that these provisions might be
considered absurd and irrational in a native of England and a
Christian according to English habits. It was however rebutted by the
fact that the testator had in his early life adopted the manners and
mode of living of a Mohamedan.
There is also a presumption that if a testator have been mentally
competent prior to the will, he is also mentally competent during the
execution.
On the other hand, if the testator is known to have suffered from
serious mental illness before execution, the presumption would be
that the illness continued and the testator lacked the mental
competency.
The presumption is again rebuttable by evidence.
In Cartwright v Cartwright (1793), testators will was rational on its
face. Thus presumption was that she was mentally competent.
However, the presumption was reversed because evidence showed
that she was insane six months prior to the execution. The will was
however upheld because of evidence that the testatrix had full and
complete capacity to understand the state of her affairs and her
relations, and to give what was proper in the way she has done.
24
Effect of Mental Incompetence

The whole will would fail if the testator lacked mental
competency.
However, if the incapacity only affected part of the will, the
rest of the will maybe upheld.
In Re Bohrmann (1938), testator was diagnosed as a paranoid
psycopath. But he had exceptional acumen in managing his
rpivate affairs. He left substantial gifts to charities. In his last
codicil, he inserted a clause revoking gifts to English charities
in favour of American charities. At the time, he was suffering
from a delusion that he was being persecuted by the London
County Council and he may be dispossessed of his home
because of a grudge held against him by one of the Councils
valuers. Langton J upheld the codicil with the omission of the
offending clause. Prior to this, testamentary instrument has
never been divided before under these circumstances. Langton
J : It has been the practice in this court for many years to
delete from instruments of testamentary disposition Capacity to
make a will
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 in deleting from the codicil something
which I believe was never brought to his knowledge and
approval as a sane, balanced man.
Finally, it is always recommended to arrange for the testator to
be examined by a medical practitioner in cases where there
maybe doubt as to the testators mental capacity. This is
known as the golden tactless rule as suggested by Templeman
J in Kenward v Adams (1975). In cases where the testator is
old and infirm, the making of his will should be witnessed and
approved by a medical practitioner, who should satisfy himself
as to the capacity of the testator and make a record of his
findings. Capacity to make a will
Lastly, there is no presumption that a person who is addicted to
alcohol lacks testamentary capacity. However, if there are
evidence that the testator was under the influence of drink, the
propounders must prove that the testator had the necessary
mental competence.
25
In the Estate of Heinke (1959), testator revoked a substantial

gift to his housekeeper (who was also his mistress) of 16 years,
during a bout of heavy drinking. Judge held that the codicil
was void on the ground that the deceased had not been of
sound mind, memory and understanding when he executed the
codicil and did not know and approve the contents.
However, in Chana v Chana (2001), a will was upheld despite
the fact that the testator was a heavy drinker but was
apparently not drunk. For drunkenness to vitiate the execution
of a will, it must have such an effect on the testator that he did
not know the nature and quality of the act which he is carrying
out.
Chapter 4 Making a will : Capacity and Intention (Part 2 of notes)

INTENTION TO MAKE A WILL : ANIMUS TESTANDI
26
INTRODUCTION
A testator must have the animus testandi when he executes a will. If this
intention is absent, the will is not valid.
The wishes of the testator must be entirely the result of his volition. The
testator must know and approve of the contents of his will.
Animus testandi can be vitiated by factors such as fraud, mistake, undue
influence or failure to understand fully the disposition of the will.
In dEye v Avery (2001), testator suffered a massive stroke and was unable
to communicate. He made a will with the help of a former dancing partner. It
was held that though he had sufficient capacity to make the will, he did not
fully understand the provisions therein and thus lacked knowledge and
approval.
This clearly illustrates the difference between capacity and animus
testandi.As Colyer QC puts it, capacity was a general ability to do
something, whereas knowledge and approval required an awareness an
appreciation of a specific instrument.
If a document appears to be a will and complies with all formalities, the
presumption is that there is animus testandi. However, this is rebuttable.
As stated by Wilde J in Lister v Smith (1868) : 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.
In Nichols v Nichols (1814), the testators will was written I leave all
my property between my children; I hope they will be virtuous and
independent; that they will worship God, and not black coats. Black
coats here referred to lawyers whom the deceased was one and whom
he loved to ridicule for using unnecessary words. Document was
executed during a dinner where the deceased wanted to show how
short a will could be. Evidence showed that the deceased never again
referred to the will and regarded himself as not having made a will.
The Courts pronounced intestacy.
Wishes intended to take effect on death
27
Testator must make an expression of wishes, normally disposing of

his property, to be carried out on his death. If a document is executed
and was not intended to take effect on death, the document cannot
constitute a will.
The words 17 1925. Mag. Everything I possess. J.B. , was held
not to constitute a will in Hodson v Barnes (1926).
Similarly a statement by a barman (deceased) on a liner to the head
barman during a chat about his sister Iris, that If anything ever
happens to me, Iris will get anything I have got, were held to be a
mere exchange of gossip spoken without animus testandi (In the
Estate of Knibbs: 1962). As Wrangham J puts it : in order to be a
testamentary act, there must be a statement of the deceaseds 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 to see that his
wishes are acted on.
Other cases to note : Re Jones (1981) ; In the Estate of Beech
(1923); Re Donners Estate (1917).
Note also that a testator can have animus testandi even if he is not
aware that he is a making a will. In Re Stable (1919), deceased was a
young soldier. His solicitor mistakenly told him that he can not make
a will. Soon afterwards, he told his fiancee in front of an acquaintance
if anything happens to me, and I stop a bullet, everything of mine
will be yours. He obviously did not think that he was making a will
having been told that he was too young to do so. The Courts however
held that his statement was made with animus testandi since he
expressed his wishes as to what should be done with his property in
the event of death.
Conditional wills
Testators may make wills which are conditional on the occurrence
of some specified event.
The rule is that if the condition is not fulfilled, there is no animus
testandi. Proof that the testator intended the will to be conditional
must appear on the face of the will though extrinsic evidence is
admissible to resolve any ambiquity.
In the Good of Hugo (1877), a married couple executed a joint
will in case we should be called out of this world at one and the
same time and by one and the same accident. They were going on
28
a long rail journey. They survived the journey. The Courts held
that the husbands earlier will was the valid will since the joint
will was inoperative as it was conditional upon a contingency
which never happened.
Other cases : Re Govier (1950) ; In the Goods of Robinson (1870)
Note that if a testator expresses a motive or reason for making a will

rather than a condition, the will is regarded as valid and
unconditional.
In the Goods of Spratt (1897), testator was a British soldier serving
in New Zealand during the Maori war. He wrote to his sister stating
that if the war continued the chances are in favour of more of us
being killed, and as I may not have another opportunity of saying
what I wish to be done with any little money I possess in the case of
an accident, I wish to make everything I possess over to youkeep
this until I ask you for it. The testator died years after the war was
over. The Courts held that the will was valid since it was not
conditional. Jeune P explained that a will is conditional if it is clearly
to take effect only on the happening, or not happening, of any event;
it is unconditional if the testator says that he is led to make his will by
reason of the uncertainty of life in general, or for some special reason.
If it be not clear whether the words used import a reason for making a
will or impress a conditional character on it, the whole language of
the document and surrounding circumstances, must be considered.
Two criteria which may assist i.e. firstly, whether the nature of the
disposition made appears to have relation to the time or
circumstances of the contingency; and secondly, where the
contingency is connected with a period of danger to the testator,
whether it is coincident with that period, because, if it is, there is
ground to suppose that the danger was regarded by the testator only
as a reason for making a will, but, if it is not, it is difficult to see the
object of referring to a particular period unless it be to limit the
operation of the will.
By asking his sister to keep his will until he asked for it, showed that
he did not have in mind any particular time for the will to cease to
have effect.
Knowledge and Approval
29
Since a testator must have animus testandi, it is only logical that he

must have know and approve of the contents of the will.
Lord Penzance in Cleare v Cleare (1869) : 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 every one who
propounds it as a will.
The burden of proof is on the propounder of the will. But if the will is
shown to have been duly executed and made by a testator with the
mental capacity, the presumption would be that the testator knew and
approved of the contents.
The effect of the presumption would be to shift the evidential burden
to the person challenging the will, who must then produce evidence to
rebut the presumption.
If there exist such evidence, the burden of proving knowledge and
approval reverts back to the propounder.
Suspicious Circumstances
Affirmative proof of knowledge and approval is necessary whenever
circumstances exist which excite the suspicion of the court.
Lindley J in Tyrrell v Painton (1894) : wherever 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.
This rule or also called the suspicious circumstances doctrine,
requires the propounder to prove knowledge and approval and thus,
30
Wills prepared by beneficiary
Parke B sated in Barry v Butlin (1838) : If a party writes or prepare

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.
In this case, the testator gave nothing to his son who was his only
next of kin. Instead he gave a large amount to his Attorney. However
the courts suspicions were removed by evidence that the testator had
been very friendly with the attorney, that the will was executed fairly
and openly in the presence of respectable witnesses, that earlier drafts
showed the same intention of the testator and that he had long broken
off relations with his violent son.
The most important case worldwide on suspicious circumstances is
Wintle v Nye (1959) 1 AER 552, HL. (Refer to textbook at pages 83
and 84).
In Re Dabbs (2001), testator executed a will which has been prepared
for him on a computer by the claimant. The claimant was a major
beneficiary under the will. The courts held that extreme vigilance was
required under these circumstances in determining the validity of the
will. The greater the degree of suspicion, the greater will be the
burden of dispelling that suspicion.
It is also presumed that the closer the relationship between the
preparer of the will and the testator, the lower the level of suspicion.
Also, the smaller the benefit to the preparer of the will, the lesser will
be the degree of suspicion.
Note however that it is always recommended that where a client
intends to make a gift to the solicitor either by will or inter vivos, the
solicitor must advise the client to be independently advised as to that
gift and must refused to act if the client declines.
I Re A Solicitor (1974), a solicitor was struck off the Roll for failing
to advise two sisters-in-law to seek independent advise when they
sought to make wills in his and his familys favour.
Other suspicious circumstances

31
Wills prepared by close relatives of a beneficiary.

In Tyrrell v Painton (1894), the testatrix had made wills in favour of
the defendant. Subsequently, she made another will benefiting her
cousin because she was not satisfied with the defendant. Two days
after her second will, her health deteriorated. The defendants son
visited her accompanied by his friend, a strange young man. The
testatrix executed another will though she was exhausted and drowsy
in favour of the defendant. It was written in the sons handwriting and
was witnessed by the son and his strange friend. The courts held that
the rule that threw upon the propounder of the will, prepared by the
beneficiary, the burden of showing that it was the true will of the
deceased, was not confined to cases where the will was prepared by
the beneficiary. It extended to any well grounded suspicion. On the
facts, the will is invalid.
Mistake
A testator may lack knowledge and approval of the whole or
part of the will because of a mistake on his part.
Not every mistake will affect knowledge and approval.
As such, one must differentiate the different types of mistake.
Mistake as to whole will

This may occur where the testator executes a will by mistake.
In Re Meyer (1908), two sisters attempted to make a codicil in
favour of the other but mistakenly executed the others codicil.
When the first of them died, it was held that the codicil is not
valid as she had not intended to sign it.
The will(s) can not be upheld because it is not executed with
the necessary knowledge and approval. There was no animus
testandi.
Mistake as to legal effect
32
It is the contents of the will that the testator must approve and not the
consequences. A mistake as to the legal effect of the testators provisions
does not affect the validity of the will.
In Collins v Elstone (1893), testatrix left two wills and a codicil to the first
will. The second will disposed off only a small policy of life insurance. It
also contained a clause revoking all previous testamentary dispositions. She
did not wish to revoke any earlier testamentary dispositions but was assured
by the executor who had prepared the will that the second will had no
application to earlier dispositions. The advice was given honestly but
obviously, mistakenly. It was held that since she knew of the clause, it was
part of the will and thus it revoked the earlier will. This decision is definitely
very different form what the testatrix intended.
Mistake as to contents
If any part of the will has been included by mistake without the testators
knowledge and approval, it can be omitted provided the sense of the rest of
the will is not altered.
In the Goods of Oswald (1874), testatrix executed a later will not realising
that it contained a revocation clause. The courts held that the revocation
clause could be excluded since she did not know of the presence of the
clause.
In the Goods of Boehm (1891), testator intended a bequest to be given to
each of his unmarried daughters, Georgiana and Florence. Counsel who
drafted the will made the mistake and inserted Georgiana in both the
bequests. The courts held that the name Georgiana could be omitted from
the bequests intended for Florence since the mistake was never brought to
the testators notice.
Where a testator lacked knowledge and approval because of a mistake as to
the contents of the will, the two possible remedies will be omission and
rectification.
In Morrell v Morrell (1882), testator instructed that all his 400 shares in his
family company should pass to his nephews. Counsel drafted the gift as
comprising forty shares. The courts held that the word could be omitted
since the testator had not approved the inclusion of the word forty, and all
the shares were passed to the nephew.
33
Fraud and Undue Influence

A testator lacks animus testandi if he makes his will as a result of the
fraud or undue influence of another person.
The will shall fail either wholly or partially.
Fraud misleads the testator whereas undue influence coerces him.
Fraud
This is where testator is intentionally misled thus affecting the
making of his will or its provisions.
The testator must have been deceived.
Failed attempt at deceiving is irrelevant.
In Allen v MPherson (1847), the testator, having made large bequests
to the appellant in his will, executed a final codicil containing a much
smaller gift. It was alleged that this was the result of false
representations being made about the appellants character to a
testator feeble in mind and in body from age, and his previous habits
of drinking wine and spirits. It was held that this is clearly fraud.
In Wilkinson v Joughin (1866), testator married a married woman.
She deliberately concealed the fact form him. The court refused to
believe her claim that she thought that her previous husband had died.
The testator described her as his wife in his will. The gift was void
because of fraud. However, a gift to her daughter whom the testator
described as his step daughter was valid since she was innocent.
In the contrasting case of Re Posner (1953), facts were similar except
that the testator was not deliberately misled since neither he nor his
wife knew at the time of marriage that the wife was still a married
woman. The gift was upheld since there has been no fraud.
It is clear from the cases that there must be a deliberate misleading of
the testator. Misleading of a testators solicitor should also suffice as
fraud.
Undue Influence
Undue influence in the Law of Succession means coercion.
Where a testator is coerced, animus testandi is obviously missing.
Persuasion is however legitimate.
34
Problem now is to determine whether the influence asserted

amounted to persuasion or coercion.
The test is whether the testator was led or drive. Wilde J in Hall v
Hall (1868) pressure of whatever character, whether acting on the
fears or the hopes, if so exerted to overpower the volition without
convincing the judgment, is a species of restraint under which no will
can be made. Importunity or threats, such as the testator as 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
testators 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 but not driven; and his will must be the
offspring of his own volition, and not the record of someone elses.
In Hall v Hall, the will failed because it was made for the sake of
peace in consequence of the violence from the sole beneficiary, who
happens to be his wife.
Note the very important case of Parfitt v Lawless (1872) : (at pages
94 and 95 of the textbook.) Pls. read the facts.
Parfitt v Lawless establishes that no presumption of undue influence
arises from the proof of a relationship, no matter how close, between
the testator and the other party. It also emphasises that to prove undue
influence, it is necessary to prove coercion, i.e. that the testator was
not a free agent that his volition was overborne.
(a) No Presumption
Undue influence can not be presumed from the parties relationship.
In Craig v Lamoureux (1920), husband was sole beneficiary under his
very ill wifes will. He was instrumental in having her prepare a will.
Though undue influence was alleged, it was not proved since there
was no evidence of coercion.
Presumption of undue influence can however arise from
circumstances surrounding the wills execution.
In Mynn v robinson (1828), wife made a new will departing from a

previous will nine days before her death in an extremely weak state.
Presumption of undue influence arose and was not rebutted . The
35
husband had a record of deceptive behaviour. Here, presumption

arose not from the relationship but because of the circumstances of
the wills execution.
(b) Coercion
In Wingrove v Wingrove (1886), Hannen P stressed that it is not
sufficient to show that a person has the power to coerce the testator. It
has to be shown that the power was indeed exercised.
Coercion could take various forms. Hannen P : 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 mere talking to him at that stage of illness and pressing
something upon him may so fatigue the brain, that the sick person
may be induced, for quietness sake, to do anything. This would
equally be coercion, though not actual violence.
Test is always whether the testator was overborne.
In Betts v Doughty (1879), testatrix was 80 years old and attempted

to alter her will so as to exclude the plaintiffs. She was told by the
plaintiffs that if she executed a new will, she could no longer reside in
their house. A solicitors clerk brought the new will for her execution
but was not allowed to see her. The courts upheld the earlier will but
imposed a trust on the plaintiffs to hold their shares as trustees for
the beneficiaries under the intended will.
In Re Harden (1959), testatrin was dominated by a man who
purported to have occult powers as a medium. He passed messages
from the other side as to how the testatrix should dispose of her estate
in two wills made by her. The courts held the wills invalid for undue
influence.
Generally, the weaker the testator, the easier to prove undue
influence. See Hampson v Guy (1891).
Note also that the burden of prove lies with the person challeging the
will on grounds of fraud or undue influence.
The usual standard of proof i.e. on a balance of probabilities applies.
However, strong evidence of fraud or undue influence must be
36
adduced since the allegations imparts an element of moral

condemnation (Boyse v Rossborough) 1857.
Note also that the party who made the pleas would be penalised for
cost if their pleas were unsuccessful (Re Cutcliffes Estate) 1959.
REVOCATION OF WILLS
Revocation is basically the action of calling back a valid will, in the sense of
rescinding or annulling the will.
It is a fundamental feature of a will that it is revocable either wholly or
partially at any time before a testators death.
Note S. 14 of the Wills Act :Revocation of will.
No will or any part thereof shall be revoked otherwise than as
aforesaid, or by another will 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 hereinbefore 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.
Note also S. 12 of the Wills Act :-
Will to be revoked by marriage except in certain cases.
Every will made by a man or woman shall be revoked by his or her
marriage, except a will made in exercise of a power of appointment,
when the property thereby appointed would not in default of such
appointment pass to his or her heir, executor or administrator or the
person entitled in case of his or her intestacy:
Provided that a will expressed to be made in contemplation of a
marriage shall not be revoked by the solemnization of the marriage
contemplated; and this proviso shall apply notwithstanding that the
marriage contemplated may be the first, second or subsequent
marriage of a person lawfully practicing polygamy.
A will can therefore be revoked by four different methods :
a by marriage
b by another will or codicil
c by a duly executed writing
d by destruction
37
Revocation of Marriage
S. 12 provides that subject to certain exceptions, a will shall be
revoked by the testators marriage.
Revocation by marriage occurs automatically irrespective of the
testators knowledge or wishes.
A void marriage doe not revoke a prior will since such marriage is
regarded in law as never having subsisted.
In Mette v Mette (1859); testator was a naturalised British subject. He
went through a ceremony of marriage in Germany with his late wifes
half sister. This was a relationship which was at that time within the
prohibited degrees of marriage in English law. Although the marriage
was valid in German law, it was void in English law. Thus, the earlier
will made by the testator was not revoked.
A voidable marriage, on the other hand, is regarded as a valid
marriage. Voidable marriages therefore revokes prior wills.
Justification of the Section

The LRC in the UK considered the following reasons as to why a
marriage should revoke all prior wills.
The first reason is that a marriage represents a fundamental change in
a persons life. With it comes new personal and financial
responsibilities.
The second reason is that a spouse and children should not
inadvertently be deprived of the rights which they would have upon the
intestacy of the other spouse and parent. Many who fail to revoke a
pre-marriage will, did not do so due to inadvertence. Most would also
wish their spouse and children to benefit from their estate. The
statutory imposition of intestacy will more likely be giving effect to the
deceaseds intention and prevent hardship to the family.
The third reason given is that the present rule is well known and
accords with the intentions and expectations of a majority of those who
marry.
On the other hand, some have argued that revocation would
disadvantage the children of a prior marriage. Also, gifts to friends and
charities would automatically be cancelled.
38
Another argument against the rule is that the rule is unnecessary since
the spouse can make an application under the rules of family
provisions.
The LRC nevertheless decided to retain the rule.
Exceptions to the rule

Note S. 12 :
Provided that a will expressed to be made in contemplation of a
marriage shall not be revoked by the solemnization of the marriage
contemplated
Under S. 12, the will shall not be revoked if it was made, in
contemplation of a marriage.
The important elements here would be:
a Expressed in the will : The exception is satisfied only if the testators
expectation of marriage and intention not to revoke appear in the will
that he made. Mental reservations on the subject are irrelevant.
b in contemplation of a marriage : This is different from the wording in
the UKs Wills Act. In UK, the words, expecting to be married were
used instead. Nevertheless, the problem as to what is meant by in
contemplation of a marriage still arises. It is not certain what
contemplation means. One is not sure whether the word connotes
some element of likelihood or probability.
The safest way for a testator to express in his will that he was making
it in contemplation of marriage is to make an express statement to that
effect in the will.
In the Estate of Langston (1953), the testator left his property to my
fiancee Maida Edith Beck in a will made two months before their
marriage. The court held that the testator had expressed a
contemplation of marriage to that lady.
Must the testator be contemplating his marriage to a particular
person? The Wills Act in UK expressly provides that the testator must
be expecting to be married to a particular person. The Malaysian
Wills act seems to be silent. Nevertheless, one can assume that the
reference to marriage should not be expressed too generally. An
example appeared in the case of Sallis v Jones (1936). The testator was
39
in a hurry to marry after the death of his first wife. He made a will, the
final sentence of which declared that. This will is made in
contemplation of marriage. There was evidence that the testator had a
lady in mind, although he had not proposed to her when he made the
will. There was no indication that he intended to marry anyone in
particular. It was held that the marriage revoked the will because the
reference to marriage was expressed too generally.
Another difference between the Wills Act in UK and the Malaysian
Act is that it is expressly provided for in the UKs act that the testator
must have intended that the will should not be revoked by the
marriage. In Malaysia, a mere contemplation of marriage is sufficient
from the Act and the there may not even be the need for the testator to
intend that the will should not be revoked by the marriage.
Finally, for the exception to apply, the testator must have married a person
whom he contemplated to marry and not someone else.
Revocation under S.14 of the Wills Act

Whatever method of revocation is used under S 14. the testator must have
the mental capacity to revoke the will.
In the case of Re Sabatini (1969), the testatrix was in her nineties and
suffered from mental illness. She tore up her will. Baker J held that she had
acted irrationally, not being of possessed of a sound disposing mind,
memory and understanding. The Judge was of the opinion 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.
The same rule applies to all other methods of revocation under S. 14.
Therefore, the same capacity would be required as that of making a will
under Banks v Goodfellow.
Revocation by another will
40
Express revocation
A testator may revoke a previous will, either wholly or partially, by express
words to that effect in a later will or codicil.
Merely stating that the will is his lat will is not sufficient to constitute
express revocation.
In Lowthorpe - Lutwidge v Lowthorpe - Lutwidge (1935), the testators later
will contained a clause I revoke all former wills this being my last will and
testament. Langton J held that the earlier dispositions were revoked because
the burden of proving that the testator had not intended to revoke them had
not been discharged. Had the phrase merely stated this being my last will
and testament, it would not have been sufficient to constitute express
revocation.
Note however that a revocation clause will not be operative if contrary
intention can be established from the will or surrounding circumstances.
Also, if a revocation clause was included by mistake, and the testator did not
know and approve of it, the clause will be inoperative.
Implied revocation
Even if a will does not expressly revoke prior dispositions, it will impliedly
do so to the extent of any inconsistency, the later in time prevails.
Sometimes, the whole will may be impliedly revoked by a later will, for e.g.
where they are totally inconsistent, or where the later will covers the same
grounds, or it was meant as a substitute for the earlier will. The documents
shall be read together.
Wilde J in Lemage v Goodban (1865) :- 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 this court has been in the habit
of admitting to probate, such, and as many papers (all properly executed),
as are necessary to effect the testators 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
it can be collected from the language of all the papers that the testator
designed to revoke or to retain.
In Dempsey v Lawson (1877), testatrix made a will in 1858 and another in
1860, each containing bequests to a number of Roman Catholic charities.
The later will did not contain a revocation clause but showed significant
41
difference from the earlier will. It was held that the whole of the earlier will
was revoked.
Other cases to note : Re Hawksley Settlement (1934) and Thorn v Dickens
(1906).
Proof of revocation
There must be proof of the contents of the later will whether it expressly or
impliedly revoked the earlier will.
Revocation may occur even if the later will is now lost or destroyed.
In Wood v Wood (1867), testator made two wills but the later one could not
be found. The evidence given by the managing clerk of the deceaseds
attorney was that the later will was validly executed and that it contained a
revocation clause. An intestacy was pronounced, the courts finding that the
later will had revoked the earlier will and the later will was not itself
revoked by destruction.
Other case : Re Howard (1944).
Note also that even if the revoking will was itself subsequently
revoked, it does not affect the position i.e. the original will remains
revoked.
In the Goods of Hodgkinson (1893), testator gave all his property to
his friend, Jane. Later, he made another will, which did not contain a
revocation clause, giving his realty to his sister, Emma. He
subsequently revoke the later will. Issue was whether Jane was entitled
to the whole of the estate or only to the personalty. It was held that the
first will was partially revoked by the second, as to the gift of realty,
and that the revocation of the second will did not revive the revoked
part.
Revocation by some writing

Under S. 14 of the Wills Act, a will can be revoked by some writing
declaring an intention to revoke the same, and executed in the manner
in which a will is hereinbefore required to be executed.
This arises where the testator has not revoked his will by another will
but has executed a document showing an intention to revoke.
42
One would presume that implied revocation shall not be applicable

here since the writing must declare an intention to revoke. This points
to express revocation.
In Ford v De Pontes (1861), a young Englishwoman had an
attachment with a French man when she visited France. Upon
returning to England, she was forced to marry a wealthy English
landowner. Some 30 years later, she resumed her friendship with her
old flame. She devised her estate to him charged with the payment of
some pecuniary legacies. Later she conveyed her estate to him free of
the charges. The question now is whether the deed revoked the will.
The courts held that the deed did not revoke the will since it did not
declare an intention to revoke the will.
In the case In the Goods of Durance (1872), testator made a will before
emigrating to Canada. Soon after, from Toronto, he sent two letters which
were executed like wills to his brother in England. One letter authorised the
testators solicitor to deliver the will to Joe and the other letter instructed Joe
to burn the will as soon as he received it without reading it. Lord Penzance
held that the will was revoked by the letter since it was duly executed in
writing declaring an intention to revoke the will.
The letter will revoke the will as soon as some writing that satisfies S.14
comes into existence, i.e. when the letter is duly executed.
Revocation by destruction
Under S. 14, a will can 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.
Two important elements here i.e. (a) there must be an act of destruction and
(b) there must be the intention to revoke.
As James LJ puts it in Cheese v Lovejoy (1877), 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.
(a) The act of destruction

Two main issues to be considered i.e.
(i) the form of destruction required and
(ii) by whom must the act be done.
43
(i) The form of destruction required

There must be an act which amounts to a burning, tearing, or otherwise
destroying the will.
In Doe d Reed v Harris (1837), the testator threw his will, which was in an
envelope, on a fire intending to revoke it. His housekeeper snatched it from
the fire. Only a corner of the paper was burnt. The courts held that the will
was not revoked.
In Stephens v Taprell (1840) the name of the testator was crossed out and
the body of the will, the attestation clause and names of the witnesses were
run through with pen. Jenner J stated : 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.
In the important case of Cheese v Lovejoy (1877), a testator drew a pen
through various parts of his will, but left the words legible. He then wrote
All these are revoked on the back. The will was thrown among a heap of
paper on the sitting-room floor. A housemaid retrieved the will and put in on
the kitchen table. It remained there for some years and the testator never
asked for it. The courts held that the will was not revokes since the testators
acts had not actually injured the will. They were at most an attempt at a
symbolic destruction.
The decision here was criticised but no changes to the law has been made.
The will here was clearly upheld contrary to the testators intention.
Perhaps, what he had done was to abandon his will, which this section
does not seem to cover.
Note also, that there is no need for the whole will to be destroyed.
What is important is that the essence of the instrument must have been
destroyed.
In Hobbs v Knight (1838) the cutting off of his signature by the testator
revoked the will since the testators signature was an essential part of the
will.
In Re Adams (1990), the will was found after the death of the testatrix with
her signature heavily scored out by a ballpoint pen. It was no longer
apparent to the eyes. This amounted to a total revocation of the will.
44

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ULS 2612 Law of Succession

In the case of Re Dale (1993), a married couple made wills in favour of

Imposition of constructive trust on the testator cannot prevent him from

Lord Camden in Dufour v Pereira (1769):-It is a contract between t he

In Re Cleaver (1981):-Nourse J emphasised that the mere simultaneity of

THE CONSTRUCTIVE TRUST

In Re Hagger (1930):-a married couple executed a joint mutual will in

POSITION OF THE SURVIVOR

The survivor is prima facie free to do as he pleases with his property

Dixon J in Birmingham v Renfrew:-The purpose of an arrangement for

REVOCATION DURING JOINT LIVES

The courts rejected the argument.

CHAPTER 3 MAKING A WILL : FORMALITIES (PART 1)

Section 5 : Wills Act 1959 5. Mode of execution.

effect to any disposition or direction which is underneath or which

A will must be in writing

CHAPTER 3 MAKING A WILL FORMALITIES (PART 2)

Signed by the Testator

However, in Re Chalcraft, the signature was held to be valid. Here,

Some other persons

Signature intended to give effect to the will

S 5 Signature made or acknowledged in presence of witnesses

The need for at least two witnesses is aimed at minimizing the

Capacity to act as witness

Signature made in presence of witnesses

Acknowledgement in present of witnesses

Mental presence means that the witnesses must be conscious of the

Present at the same time

Subscribe to the will i.e. to attest and to sign

Presence of the testator

S. 5 also requires a witness to subscribe to the will in the presence of the

Presence of other witnesses

Finally, no form of attestation is necessary. But such a clause is

Chapter 4 Making a will : Capacity and Intention (Part 1 of notes)

Having capacity means that a person is legally competent to make a

Classis test as enunciated in Banks v Goodfellow (1870), Cockburn

understand the elements of which it is composed, and the disposition

a) Nature of business: Testator must be aware that he is

b) Recollection of the property: Testator must have a general

c) The objects of his bounty : Testator must be aware of the

bounty, and of deliberately forming an intelligent purpose

d) Manner of distribution : Testator must be able to recollect

Note that today, due to advancement in medical science, lack of

Testator can be capricious

and described her as a fiend, a monster Satans special property

Waring v Waring (1848) : testatrix suffered various delusion the most

When must the testator have mental capacity?

The Burden of proof

Effect of Mental Incompetence

In the Estate of Heinke (1959), testator revoked a substantial

Chapter 4 Making a will : Capacity and Intention (Part 2 of notes)

Wishes intended to take effect on death

Testator must make an expression of wishes, normally disposing of

Note that if a testator expresses a motive or reason for making a will

Knowledge and Approval

Since a testator must have animus testandi, it is only logical that he

Wills prepared by beneficiary

Parke B sated in Barry v Butlin (1838) : If a party writes or prepare

Other suspicious circumstances

Wills prepared by close relatives of a beneficiary.

Mistake as to whole will

Mistake as to legal effect

Fraud and Undue Influence