Formalities

1. S.5 of Wills Act  in writing, attestation by witness, signature (and how signature should be put
and by whom?)

Writing

1. S.5(1)  will should be in writing (but it does not explain what is in writing, is it writing per se, or
typewritten? It also does not mention where/ what type of material to be used. )
2. Leow Chi Kong v Tan Lian Kee 2005 1 CLJ 108 – typewritten, written, photography, lithography,
electronic storage, or transmission, or any other method of recording information, or fixing
information in a form capable of being preserve. As long content of will can be preserve until all
matter dispose, it is fall within the meaning of “writing”.
3. Hudson v Barnes 1926 43TLR71  the will was written on an egg shell , the will was refuse to
probate for a number of reasons but not on the substance of which on it which was written (the
will is invalid, no probate can be granted, but not because the will was written on the egg shell)
4. Kow Cheng Bok 1998 3MLJ457
5. s.26 is exceptions (privilege will – s.5 does not apply to this type of will)
6. Goods v Adams, Whiting v Turner, Kell v Charmer

Signature

1. Signature – 3 types:- (i) testator, (ii) witnesses, and (iii) other person in testator’s presence and
directions
2. S.5(2) – every will shall be signed. (Act does not explain what constitute signature, it could be a
thumbprint, sign by pen etc)
3. Leow Chi Kong – any marks or initial that are intended to represent the signature to a will, will be
considered sufficient in law.
4. In some English cases, any marks made by testator to represent his signature, or the use of any
instrument.
5. Re Jenkins (1863) 3 SWNTR 93  in this case, testator use his usual signature has been engraved to
be stamped. The issue here is whether the signature engraved can be consider as a signature.
6. Re Finn  a thumbprint mark by the testator, court held it is a signature.
7. Re Cook 1960 1 AllEngR 689 / 1 WeeklyLawReport 353  anything that represent testator
signature was accepted as a valid signature. “Your Loving Mother” was held to be a sufficient
signature.
8. Re Chalcraft 1948 1 AER 700  incomplete sign by testator, held to be valid signature and can be
accepted. In the case, he manage to sign “Chal…” only.
9. S.5(2)  if signed by other person, it must be done in presence of testator and also must by
testator’s direction. Then, the testator needs to acknowledge the signature. The signature will bear
the testator’s name or the name of the other person who signed on behalf of the testator. (Re
Clarks Good (1839) 2CURT329) The burden of proof is on the propounder (提议者)
10. What if the testator is blind?  S.10 of Wills Act

In presence of 2 witness

1. S.5(2)  The signature need to be signed in the presence of two or more witness present at the
same time.
2. Re Collin 1972 3ALLinThe Report 729 – testator of a will in the hospital, in presence of another
patient and a ward sister, before he completes his signature, ward sister was called to attend other
patient, court held it was invalid even though it was started with two witnesses.
3. If testator signed the will not in front of two witnesses, then if testator acknowledge the signature
in presence of two witnesses at the same time, the will is valid because such signature ..
4. SAWINDER KAUR @ SINDO KAUR D/O FAUJA SINGH v CHARNJIT SINGH S/O THAKAR SINGH
[1996]1MLJU304 – this case referred to Re Colling where the testator was to acknowledge his
signature in the actual and visual presence of witnesses. The defendant had fail to prove he had
acknowledged his signature in presence of two witnesses under S.5(2). Thus no probate of will was
granted.
5. Acknowledgement of signature can be done verbally, gesture, implication.
6. Re Davies’ Goods 1852 ROB ECCL 337
7. Attestation
8. DR. K. SHANMUGANATHAN (SUING BY HIS ATTORNEY DR. A. PURAVIAPPAN) v. PERIASAMY
SITHAMBARAM PILLAI 1994 2 CLJ 225  s.5(2) and the two witnesses need to subscribe the will as
a manner of attestation, but do they need to attest it in front of each other at the same time, the
act is silent. This case laid down that it is not necessary as long as the witness attest in front of the
testator.
9. S.8 of Wills Act – will not be invalidated by reason of incompetency of the attesting witness (for
example, witness attested the will, but the next day she has delusions)
10. S.9 of Wills Act  testator cannot give gift to witness / witness’s husband or wife
11. Re Council Bill – the witnesses claim that they have not attested the will but they have just signed
to verify the will, the court said that the P failed to prove…the P will not receive the gift. There’s no
such requirement to verify the will. Once you attest the will, it means you are the witness, witness
will not receive the gift of the will, the reason why they disagreed.
12. Thorpe v Beswick (1881) 6 QBD 311  disqualification must exist at the period of the attestation
of the will. Beneficiary is an unmarried woman, who only was married to one of the witness of the
will after the attestation period but not at the time the attestation happened, thus, the will is still
valid. (s.9 of Wills Act)
13. Trot Skipmore, In the Goods of Williams Jones 1865 4 SWNTR 1 – presumption of s