UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 3103 – LAW OF SUCCESSION

Succession/September, 2018/SB
REQUISITES OF A VALID WILL

1. INTRODUCTION

For a will to be valid (save in the case of privileged wills) so that it can be admitted to

probate, certain requirements must be met. It must be made in proper form by a person of

sufficient age, and in compliance with prescribed formalities and the necessary mental

element must be present.

2. REQUISITES OF A VALID WILL

(a) Age of majority- the will must be made by a person who has attained the age

of majority

(b) Formalities must be complied with- the will must comply with certain

formal requirements as laid down by statute

(c) Testamentary capacity - the person making the will must have animus testandi

I. Age of majority- the will must be made by a person who has attained the age

of majority.

See:

-Section 7 Wills Act 1837

-Section 6 Civil Law of Guyana Act Cap 6:01

II. FORMALITIES

1
Section 4 of the Wills Act, Cap 12:02 sets out the formalities required for the making of a

valid will. Failure to comply with these formalities results in the will not being admitted to

probate. The testator’s intention will therefore not be given effect to as the estate is then

distributed according to the rules of intestacy.

The purpose of formalities is to ensure that the will is truly the one the testator intended to

make, that is not a forgery, or the result of undue influence, or something made in the heat

of the moment.

1. SECTIONS 4 AND 5 OF THE WILLS ACT, CAP. 12:02 (Section 9 of the Wills

Act, UK, 1837)

Section 4 of the Wills Act, Guyana, Cap 12:02 provides:

“No will made in Guyana shall be valid unless it is in writing and executed in
a manner hereinafter mentioned: that is to say, it shall be signed at the foot or
end thereof by the testator, or by some other person in his presence and by his
direction, and the signature shall be made or acknowledged by the testator in
the presence of two or more witnesses present at the same time, and those
witnesses shall attest and shall subscribe the will in the presence of the testator,
but no form of attestation shall be necessary”.

Section 5 provides inter alia, that:

“Every will shall, so far only as regards the position of the signature of
the testator or of the person signing for him, be deemed to be valid
within the preceding section if the signature is so placed at or after, or
following, or under, or beside, or opposite to, the end of the will, that it
is apparent on the face of the will that the testator intended to give effect
by that signature to the writing signed as his will”

Summary of sections 4 and 5:

2
No will shall be valid unless:

(a) it is in writing; and

(b) signed at the foot or end thereof;

(i) by the testator, or

(ii) by some other person in his presence and by his direction; and

(c) it appears that the testator intended by his signature to give effect to the will

(Section 5); and

(d) the signature is made or acknowledged by the testator in the presence of two or

more witnesses present at the same time; and

(e) each witness must attest and sign the will in the presence of the testator (but

not necessarily in the presence of the other witness)

 But no form of attestation shall be necessary,

 This requirement of formalities applies to all wills, with the sole exception of

privileged wills.

2. REQUIREMENTS OF SECTIONS 4 AND 5

2.1 A will must be ‘in writing’

Section 4 of the Wills Act, Cap. 12:02 provides that a will must be in writing. This means

that a will is not valid unless it is in writing.

Exception – Privileged Wills – an oral will can be made by a privileged testator.

2.1.1 Meaning of “in writing”

3
There is no statutory definition of writing. Permanent visual representation is what is
required

Medium used-

A will may be written in pencil or in ink or a combination of the two, but there is a

rebuttable presumption that the pencil writing in such a combination was only deliberative.

See: In the goods of Adams (1872) LR 2 P and D 367

Language used -

A will can be written in any language, even in code, provided there is reliable evidence as

to what the language means or that the code could be deciphered. The test is whether the

writing is decipherable.

See: (a) Kell v Charmer (1856) 23 Beav 195:53 ER 76

(b) Whiting v. Turner (1903) 89 LT 71

(c) Re: Berger (1989) 1 ALL ER 591

The Court of Appeal granted probate to documents written in

Hebrew and known as Zayah.

Material used -

There is no restriction as to materials on which or with which a will may be written so that

any materials suffice provided that a permanent form of visual representation results.

Valid wills have been made on calendars, back of cheques, on a small piece of cardboard,

and even on an egg-shell.

See: (a) In the estate of Murray (1963) CLY 3621

(b) Hodson v Barnes (1926) 43 TLR 71

4
2.2 The will must be signed

Section 4 of the Wills Act, Guyana Cap. 12:02 requires that will must

(i) be signed by the testator, or

(ii) by some other person, in his presence and by his direction.

NB. Not fatal if testator/testatrix does not sign.

2.2.1 Signed by the Testator

The will must be signed by the testator.

2.2.2 The signature

The important thing is not that the deceased signed his name but that whatever mark he

does put, is intended by him to represent his signature. This is so even if the testator

could sign normally but chooses to make a mark instead.

See: Baker v. De Wing (1838) 8 Ad E94:112 ER 771

Hindmarsh v Charlton (1861) 8 HL Cas 160 at p. 167, Lord Campbell

LC:

“… there must be either the name or some mark which is

intended to represent that name”.
Signature need not consist of a name at all - a will signed with the words ‘your loving

mother’ placed at the end of the document was held to be sufficient.

Re Cooks’ Estate (1960) 1 ALLER 639 -

A will beginning, “I Emmie Cook…” and ending “Your
loving mother” was admitted to probate. The Judge was

5
 satisfied that the concluding words were meant by the
testatrix to represent the testatrix’s name.

See also: (a) In the Goods of Redding (1850) 2 Rob Ecc 339; 163 ER 1338

(b) In the Goods of Savory (1851) 15 Jur 1042

(c) In the Goods of Jenkins (1863) 3 SW &Tr 93

(d) In the Estate of Finn (1936) 52 TLR 153

(e) Baker v Denning (1838) 8 Ad and E 94; 112 ER 771

Testator must intend mark to be signature –

See: In the Goods of Chalcraft (1948) 1 ALL ER 700, Wilmer J at p 702-

(part of name intended as signature)

“… this lady is 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”.

Re Colling (1972) 3 ALL ER 321

Weatherhill v Pearce (1995) 2 ALL ER 492

Testator is too weak to sign unaided-

See- Wilson v Beddard (1841) 12 Sim 28:59 ER 1041

6
 In this case the testator signed the will with a mark before he died. He was so ill

that his hand had to be guided. The court held this to be a valid signature.

2.3 ‘Some other person in his presence and by his direction’

Section 4 of the Wills Act, Guyana, Cap. 12:02 allows ‘some other person’ to sign the

testator’s will on his behalf, provided that it is signed by another person both in the

testator’s presence and under his direction.

See: (a) In the Goods of Clark (1839) 2 Curt 329: 163 CR 428- person

signing own name on behalf of testator- will valid.

(b) Smith v Harris (1845) Rd Ecc: 163 ER 1033-

an attesting witness signing on behalf of a testator – will valid.

2.3.1 Presence

Physical presence - the requirement is that the testator should see or have the opportunity

of seeing the person signing on their behalf.

2.3.2 Direction

The testator’s physical and mental condition must be such that he could either object to or

assent to the signature made on his behalf.

2.4 Position of the signature

- Signature intended ‘to give effect to the will’

7
Section 4 provides that the will must be signed at its foot or end.

Section 5 of the Wills Act, Cap. 12:02 clarifies the meaning of the phrase “at the foot or

end thereof”.

Section 5 makes it clear that the signature can be placed anywhere so long as it is apparent

on the face of the will that the testator intended to give effect by that signature to the

writing signed as his will. It ends with two prohibitions – a signature can never operate

to give effect to any part of the will:

(i) which is underneath or which follows the signature; or

(ii) which was inserted later in time after the signature was made

See: (a) Re Bercovitz (1962) 1 WLR 332

(b) Re Beadle (1974) 1 WLR 417

This requirement has been interpreted in the cases before the courts to mean that the

signature should be deemed valid if placed at or after, or following, or under, or beside or

opposite to, the end of the will so that it is apparent on the face of the will that the

testator intended to give effect by that signature to the writing signed as his will.

See: (a) Wood v Smith (1992) 3 ALL ER 556 C.A (1993)

CH 90. Scott L. J at p. 562
“… if the writing of the will and the appending
of the signature are all one operation, it does
not matter whereabouts on the documents or
when in the course of writing the signature is
appended”.
NB The will in Wood v Smith failed for lack of testamentary capacity.

Weatherhill v Pearce (1995) 2 ALL ER 492

8
 Re Stalman (1931) 145 L.T. 339

The testator in this case had written his will on a simple sheet, and

signed her name at the top right hand corner of the will because there

was no room at the bottom of the page. The will was held to be

invalid because the signature of the testatrix appeared at the top

of the page.

It should be noted that this decision was based on the interpretation of the statute which

only provided for signature ‘at the foot or end’ of the will. This decision would now be

different provided that the signature was intended ‘to give effect to the will’.

(d) See also In b. Harris (1952) P. 319

(e) Re Roberts (1934) P. 102

(f) In b. Archer (1871) 25 L. T. 274

- the signature may be placed among the words of the attestation clause or

follow it, or placed after, or under the attestation clause, either with or without

a blank space intervening, or placed under or beside the names or one of the

names of the subscribing witnesses.

See: In b. Hornby (1946) P. 171

Weatherhill v Pearce (1995) 2 ALL ER 492

- a blank space may intervene between the concluding words of the will and the

signature.

9
 - the signature may be placed on a page on which no part of the will is written,

even if there appears to be sufficient space, on or at the bottom of the preceding

side, or page, or some other position of the same paper on which the will is

written.

See: In b. Ainsworth (1870) 23 L.T. 324

- no signature can operate to give effect to any part of the will which is

underneath it or which follows it, (note exceptions discussed above) nor shall

it give effect to any disposition or direction inserted after the signature shall

be made.

- signature where will comprised of several pages (discussed later)

2.5 The signature of the testator must be made or acknowledged in the presence

of witnesses

Section 4 states that the signature of the testator "shall be made or acknowledged by the

testator in the presence of two or more witnesses present at the same time ---".

2.6.1 Signature made in joint presence of witnesses

10
To be present at signing, the witnesses must be capable of seeing the testator in the act of

writing his signature, although they never actually look at the signature. They need not

know that the document is a will as the witnessing is of the signature.

- old cases

The old cases involved careful consideration of whether it was physically possible for

the testator and witnesses to have seen each other had they looked.

See: (a) Casson v Dade (1781) 28 ER 1010

(b) Norton v Bazett (1856)

- later cases / current position -‘consciousness of the act done’

See: Hudson v Parker (1844) 1 Robb Ecc 14, 163 ER 948 -

(a) Mental presence:

The witness must be conscious of the act done.

Brown v Skirrow [1902] P3 at p5 Gorell Barnes J:

“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”.

- The witnesses need not know that the testator is signing a will; nor need they

know what the testator is writing. What they must be conscious of is an act of

writing by the testator.

See: Smith v Smith (1866) 1 P & D 143

11
 Re Colling (1972) 1 WLR 1440

(b) Physical Presence

The test is whether the witnesses could have seen the testator signing – in the sense of

having an opportunity to see – not whether they actually saw the signing.

(i) Brown v Skirrow (1902) P. 3

(ii) In the Estate of Gibson (1949) 2 ALL ER 90. Pearce J at pp. 91 – 92.

“--- for the purposes of the Act a witness means one who in regard
to things audible has the faculty of hearing and in regard to things
visible has the faculty of seeing. The signing of a will is a visible
matter, and, therefore, I think a will is not signed in the presence of
a blind person, nor is he a ‘witness’ for the purposes of this section”

2.6.2 Signature acknowledged in the presence of witnesses

If the signature on the will was not made in the simultaneous presence of two witnesses,

the signature may be subsequently acknowledged by the testator in their simultaneous

presence. There are three requisites for a valid acknowledgement:

(i) the will must already have been signed before acknowledgement

(ii) at the time of acknowledgement the witnesses must see the signature or

have the opportunity of seeing it

(iii) the signature must be acknowledged by words or conduct

- already signed…”

- must see - - - or have the opportunity of seeing the signature

The witness must be able to see for himself that the signature exists:

12
 See: Re Groffman (1969) 1 WLR 733

Hudson v Parker (1804) 1 Rob Ecc

In the Goods of Cunestan (1882) 7 PD 102

- Acknowledgement

See: Hudson v Parker (1844) 1 Ren Ecc 14; 163 ER 948. 952 – 953 Dr.

Lushington:

“It is quite true that acknowledgement may be expressed in any

words which adequately convey that idea, if the signature be proved
to have been then existent; no particular form of expression is
required either by the word ‘acknowledge’ or by the exigency of the
act to be done. It would be quite sufficient to say ‘That is my will’,
the signature being there, and seen at the time”.

Weatherhill v Pearce (1995) 2 ALL ER 492

Keigwin v Keigwin (1843) 3 Curt 607: 163 ER 841

In the Goods of Davies (1850) 2 Rob Ecc 337; 163 ER 1337

Daintree v Butcher (1888) 13 PD 102, CA. Cotton L J stated at p. 103.

“In my opinion, when the paper bearing the signature of the

testatrix was put before two persons who were asked by her
or in her presence, to sign as witnesses that was an
acknowledgement of the signature by her. The signature
being so placed that they could see it, whether they actually
‘did see it, whether they actually did see it or not, she was in
fact asking them to attest that signature as hers”.

3. Capacity to act as witnesses

Section 6 of the Wills Act, Guyana, Cap 12:02:

13
 “Everyone, save as hereinafter excepted, above the age of fourteen years,
competent to give evidence in any court of law in Guyana, shall be
competent and qualified to attest the execution of a will”.

Hudson v Parker (1844), Dr. Lushington:

“(witnesses) should see and be conscious of the act done, and be

able to prove it by their own evidence”.

3.1 Signature by witnesses

- The witnesses must attest and subscribe

Section 4 requires that each witness must attest and subscribe the will in the presence of

the testator.

See: In the goods of Chalcraft (1948) P 222

4. Order of execution

Section 4 lays down a chronological order of events which must be followed. There are

two successive steps:

(i) the testator must first complete signing or acknowledging his signature in

the simultaneous presence of at least two witnesses.

(ii) the witnesses must then sign their respective signatures.

See: Wyatt v Berry (1893) P. 5

Re Device (1951) 1 ALL ER 920

Re Colling (1972)

4.1 Signature by witnesses

14
The rules as to what constitutes the signature of a witness are the same as those for a testator

– the witness must make a mark intended to be his signature. Thus, the witness does not

need to use his name.

In the Goods of Sperling (1863) 3 SW & T 272; 164 ER 1279

4.2 Personal Act

The witness must sign personally. Unlike the position with testators, another person cannot

sign on behalf on of the witness.

See In the Estate of Bullock [1968] NI 96.

However, it is possible for the hand of the witness to be guided by another person.

See: In the Goods of Lewis (1861) 31 LJP 153. Cressewll J at p. 153.

4.3 Position of Signature of witnesses

Section 4 does not specify where the witnesses should sign. The most sensible place is

close to the testator’s signature – alongside or just below – but the signature may be

anywhere on the will provided that it was intended to attest the testator’s operative

signature.

In the Goods of Braddock (1876) 1 PD 433. Hannen P stated (at pp. 434-5):

“The law does not require that the attestation should be in

any particular place, provided that the evidence satisfies the
Court that the witnesses in writing their names had the
intention of attesting. But the attestation, if not on the same
sheet of paper as the signature of the testator, must be on
paper physically connected with that sheet”.

In the Goods of Hatton (1881) 6 PD 204

15
4.4 Intention to attest

The witnesses must sign as witnesses that is, with the intention that their signatures should

be an attestation of the due execution of the will by the testator.

See: In the Estate of Bravda (1968) 2 ALL ER 217, CA

4.5 The presumption is rebuttable

The presumption that a person who signed a will (other than the testator) did so as a witness

is rebuttable by evidence showing that the signer did not sign as a witness.

See: In the Goods of Sharman (1869) 1 P & D 662

Kitcat v King (1930) P 2006

5. Attachment – Connection of signature with pages of the will

The requirement that the will must be signed at the foot or end thereof, can lead to

difficulties where the will consists of two or more sheets of paper.

See: Re Little (1960) 1 ALL ER 387

In b. Horsford (1874) L.R. 3 P & D 211

Lewis v Lewis ((1908) P.1

R Long (1936) P. 166

In the goods of Tiernan (1942) IR 572

In the Goods of Mann (1942) 2 ALL ER 193 Langton J held that the

envelope was part of the will despite the absence of any form of attachment.

16
 He said at p. 195:

“…if an unattached paper is to be admitted at all, there is much to

be said in favour of an envelope which may reasonably be held to
have a far closer relationship to a document which it encloses, than
a second or wholly disconnected piece of paper. Envelopes are, by
their nature designed to have what may be described as a dependent
and secondary existence rather than an independent and primary life
of their own”.

6. Envelope cases

Where a testator signs his name not on the will itself but on the envelope containing the

will, the court will admit such a will to probate if they are satisfied that the signatures

appearing on the envelope is intended to be the signature of the will and not put these

merely for identification purposes.

In b. Mann (1942) P. 146

In the estate of Bean (1944) P. 83

Re Beadle (1974) 1 ALL ER 493

7. NUMBER OF ATTESTING WITNESES

Section 4 of the Wills Act, Cap. 12:02 provides that the testator signs or acknowledges his

signature in the presence of two or more attesting witnesses.

See (a) Re Bravda (1968) 2 ALL ER 217

(b) Fell v Bidolph (1875) LR 10 CP 701

(c) Parry and Clark

8. ATTESTATION CLAUSE

17
Section 4, ends with the words ‘but no form of attestation shall be necessary’.

Although an attestation clause is not strictly essential, it is highly desirable. The purpose

of the 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.

An example of an attestation clause is as follows:

Signed by the above named testator in our presence and attested by us in his presence

and in the presence of each other.

9. GIFT TO ATTESTING WITNESSES

Section 7 of Cap 12:02 provides that if a witness is also a beneficiary, he will lose his

benefit under the will. Section 7 provides:

“If anyone attests the execution of a will to whom, or to whose wife or husband,
any beneficial devise, legacy, estate, interest, gift, or appointment, of or
affecting any property (other than and except charges and directions for the
payment of any debt or debts), is thereby given or made, that devise, or legacy,
estate, interest, gift, or appointment, shall, so far only as concerns the person
attesting the execution of that will, or the wife or husband of that person, or
anyone claiming under that person, or wife or husband, be null and void, but
the execution of the will shall not be affected thereby”.

See:

(a) Fell v Bidolph (1875) LR 10 CP 701

(b) Jull v Jacobs (1876) 3 Ch D 703
(c) Thorpe v Bestwick (188) 44 L.T 180
(d) Re Marcus (1887) 57 L.T. 399
(e) Aplin v Stone (1904) 1 Ch 543
(f) Re Doland, Westerminister Bank Ltd v Phillips (1970) CH 167

18
 (1969) 3 ALL ER 713

III. ANIMUS TESTANDI (TESTAMENTARY CAPACITY)

(Worksheet 3)

TUTORIAL QUESTIONS TO WORKSHEETS 2 & 3

1.(a) Tom Smith wrote his will on one side of a sheet of paper ending with the words
‘signed by the above named testator as his will’.

He then wrote his name at the head of the sheet. He then put the will in an envelope
on which he wrote “The will of Tom Smith”. He next called in Frank and Edgar,
pointed to the envelope and said, “This is my will and I want you to witness it”.
At that moment the telephone in the room rang and Tom answered it, standing with
his back to Frank and Edgar while they wrote their names on the envelope. Tom
died a month ago.

Advise as to the validity of the will.

(b) David Alexis has come to your chambers and informed you that he is the sole
executor of the will of one Ranjit Rampersaud, popularly known as “Bim” who
recently died at his home in Third Street, Alberttown.

He hands you Rampersaud’s will, in which he has left the bulk of his estate to his
neighbor, Sonia Maynard.

On examining the will, you observe that half-way on the second page of his three-
page will, he signs the will as “Bim”. On the line immediately below appears the
word, “witness” and two signatures – one of Sonia Maynard, the other of a close
friend, Ronald Dorsett, who predeceased the testator, Rampersaud.

Advise as to the validity of the will.

2. Alvin Joshua died leaving his widow Maria as sole executrix of his will. Maria has
consulted you for the purpose of having her husband’s will admitted to probate, but
upon inquiry, you established that while Joshua was affixing his signature to the
will, one of the subscribing witnesses, Raymond, who was unaware of the nature
of the document he was signing, left the room to answer an urgent call. Joshua
nonetheless continued to complete his signature in the presence of the other witness,
Leonard. Leonard then subscribed the will in the presence of Joshua.

19
 Joshua’s son, Jeremiah, is contesting the will on the grounds that it was not validly
executed by his father.

Advise the executrix Maria

3. The testatrix went to the shop of Mr. Sandy Read, at 225, New Road, Vreed-en-
Hoop, grocer and wine merchant, which was near her residence. Both Mr. Read
and Miss Mary Jeffrey, his assistant, were in the shop, the former being engaged at
the time with a commercial traveler, who was also in the ship and who stood
between Mr. Read and the testatrix. The shop, which was not large, had two
counters, and Mr. Read was at one counter. The testatrix went to Miss Jeffrey,
who was at the other counter, produced a printed form of a will, which, apparently,
had already been filled up, and asked Miss Jeffrey to see her sign it. The testatrix
signed it, and Miss Jeffrey, who saw the testatrix sign, then attested it. The traveler
having left shortly afterwards, Mr. Read was asked by Miss Jeffrey to go round to
the counter where the testatrix had signed, Miss Jeffrey taking his place at the other
counter. The testatrix then said to Mr. Read, “This is my will. I have signed it.
Miss Jeffrey has signed it. Will you sign it?” At this time Miss Jeffrey was
attending to a counter at the other counter, and did not see Mr. Read sign the will.

Consider these facts taken from the case of Brown v Skirrow in 1902 and
discuss whether the will was validly executed.

4. In 1993 Ada, aged 70, made a will leaving all her property to her husband Harold,
and her two sons, David and Colin in three equal shares. In 1995 she was admitted
to a hospital as she was suffering from terminal cancer. A week before she died,
Ada was visited by David who had prepared a new will following consultations
with Harold and Colin. Under the new will David was to receive half of Ada’s
estate, the residue to be shared equally by Harold and Colin.

When Ada was shown the will she was in a comatose state as the result of the drugs
administered to her. She read through the will and said, ‘And you sure this is
alright?’ David replied, ‘Well --- perhaps we should change one thing’. He then
altered the amount of the gift to himself, increasing it from one-half to three-
quarters of the estate. He then showed the altered will to Ada who asked him to
read it through to her as she was too tired to do it herself. David read it out twice
in the presence of David’s wife, another patient and two nurses. When Ada was
about to sign the will one of the two nurses left to attend to a patient. After Ada
had signed the will in the presence of David, his wife, the other nurses and the
patient the will was signed by the patient and the nurse as witnesses. When the
nurse returned after attending to the patient’s call, she was also asked to, and she
did, sign the will as a witness. Ada died leaving an estate at $15M.

You are consulted by Harold and Colin who now think that only the 1993 will
should be admitted to probate.

20
 Advise them.

5. In 1997, Michael Vincent, a wealthy businessman and confirmed alcoholic joined

a religious sect.

Six months after the sect, Vincent swore off alcohol completely and he credited his
“salvation” as he saw it, to the working of the sect’s religious leader, Brother
Bertrand.

One of the rules of the Sect is that a person on being admitted must render utter and
total obedience to its leader and as a sign of total submission, members are required
at death to donate all their worldly possessions, both real and personal, to the Sect.

In 2002, Vincent becomes gravely ill and is hospitalized. On his death bed and at
the urging of Brother Bertrand, Vincent decides to make a new will. Vincent’s
solicitor is called in, and a new will is made, whereby Vincent revokes his earlier
will and leaves all his property to the sect. The will is then signed by the testator
and subscribed by two (2) members of the Sect. Brother Bertrand is present in the
testator’s hospital room during the execution.

Two (2) days later Vincent dies and his son the sole beneficiary under earlier will
comes to you for advice as to the likelihood of upsetting the later will.

Advise him.

21