Such were the principal stages in the history of the law as it affected wills made before 1838 or proved before 1858. The principal acts in force in the early twentieth century were the Wills Act 1837, the amending act of 1852, the Court of Probate Act 1857, the Judicature Acts 1873 and 1875, and the Land Transfer Act 1897. All but the acts of 1837 and 1852 deal mainly with what happens to the will after death, whether under the voluntary or contentious jurisdiction of the Probate Division.
The earliest on the statute roll is an act of Henry III (1236), enabling a widow to bequeath the crops of her lands. Before the Wills Act uniformity in the law had been urgently recommended by the Real Property Commissioners in 1833. It appears from their report that at the time of its appearance there were ten different ways in which a will might be made under different circumstances.
The act of 1837 affected both the making and the interpretation of wills. Excluding the latter for the present, its main provisions were these.
- All property, real and personal, and of whatever tenure, may be disposed of by will.
- If customary freeholds or copyholds be devised, the will must be entered on the court rolls.
- No will made by any person under the age of twenty-one is valid.
- Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. It is usual for the testator and the witnesses to sign every sheet.
- Gifts to a witness or the husband or wife of a witness are void.
- A will is revoked by a later will. or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances.
- Alterations in a will must be executed and attested as a will.
- A will speaks from the death of the testator, unless a contrary intention appear.
- An unattested document may be, if properly identified, incorporated in a will.
Rules of interpretation or construction depend chiefly on decisions of the courts, to a smaller extent on statutory enactment. The law was gradually brought into its present condition through precedents extending back for centuries, especially decisions of the court of chancery, the court par excellence of construction, as distinguished from the court of probate. The court of probate did not deal unless incidentally with the meaning of the will; its jurisdiction was confined to seeing that it was duly executed. The present state of the law of interpretation is highly technical. Some phrases have obtained a conventional meaning which the testators who used them probably did not dream of. Many of the judicial doctrines which had gradually become established were altered by the Wills Act.
Rules of interpretation founded on principles of equity independent of statute are very numerous. Some of the more important, stated in as general a form as possible, are these:
- The intention of the testator is to be observed. This rule is called by Sir E Coke the pole star to guide the judges.
- There is a presumption against intestacy, against, double portions, against constructing merely precatory words to import a trust, etc.
- One part of the will is to he expounded by another.
- Interlineations and alterations are presumed to have been made after, not as in deeds before, execution.
- Words are supposed to be used in their strict and primary sense. Many words and phrases, however, such as “money,” “residue” and “issue” and other words of relationship, have become invested with a technical meaning, but there has been a recent tendency to include illegitimate children in a gift to “children.”
- Evidence is admissible in certain cases to explain latent ambiguity, and parol evidence of the terms of a lost will may be given as in the famous case of Sugden v. Lord St Leonards (1876), 1 Prob. Div. 154.
A will may be void, in whole or in part, for many reasons, which may be divided into two great classes, those arising from external circumstances and those arising from the will itself. The main examples of the former class are revocation by burning, tearing, etc., by a later will, or by marriage of the testator (except as below), incapacity of the testator from insanity, infancy or legal disability (such as being a convict), undue influence and fraud, any one of which is ground for the court to refuse or revoke probate of a will, A will being ambulatory is always revocable, unless in one or two exceptional instances. Undue influence is a ground upon which frequent attempts are made to set aside wills. Its nature is well explained in a judgment of Lord Penzance’s: “Pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. There is nothing corresponding to thequerela inofficiosi testamenti, but unnatural provisions may be evidence of mental defect.
The circumstances appearing on the face of the will which make it open to objection may either avoid it altogether or create a partial intestacy, the will remaining good as a whole. Where the will is not duly executed, e.g. if it is a forgery or if it is not signed by the testator or the proper number of witnesses, the will is not admitted to probate at all. Where it contains devises or bequests bad in law, as in general restraint of marriage, or tending to create perpetuities, or contrary to public policy, or to some particular enactment, only the illegal part is void. A remarkable instance is a well-known case in which a condition subsequent in a devise was held void as against public policy, being a gift over of the estate devised in case the first devisee, the eldest son of an earl, did not before his death obtain the lapsed title of Duke of Bridgewater.
At common law there could be no larceny of a will of lands. But by the Larceny Act of 1861 stealing, injuring or concealing a will, whether of real or personal estate, was punishable with penal servitude for life. Forgery of a will (at one time a capital crime) rendered the offender liable to the same penalty. Fraudulent concealment of a will material to the title by a vendor or mortgagor of land or chattels is, by the Law of Property Amendment Act 1859, a misdemeanour punishable by fine or imprisonment or both.