Scribd
Upload
3K views30 pages

Testamentary Succession 4

1) A will must be in writing, signed by the testator or someone else in their presence and at their direction, and witnessed by two people who sign the document. 2) The testator must sign or acknowledge their signature to the witnesses, who must both be present at the same time. 3) Any competent person can witness a will, except for those who are blind or mentally unsound, and beneficiaries or their spouses lose any gifts in the will but can still serve as witnesses.

Uploaded by

talk2marvin70
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
3K views30 pages

Testamentary Succession 4

1) A will must be in writing, signed by the testator or someone else in their presence and at their direction, and witnessed by two people who sign the document. 2) The testator must sign or acknowledge their signature to the witnesses, who must both be present at the same time. 3) Any competent person can witness a will, except for those who are blind or mentally unsound, and beneficiaries or their spouses lose any gifts in the will but can still serve as witnesses.

Uploaded by

talk2marvin70
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 30

FORMALITIES FOR EXECUTION OF A

VALID WILL
• In Zambia, a Will is properly executed if done
in accordance with Section 6 of the Wills and
Administration of Testate Estates Act of 1989
(Cap 60) ‘’Wills Act’’ which repealed the
English Wills Act of 1837.

• Section 6 of the Wills Act states that:-

‘’ (1) A Will shall be valid if it is in writing and


• (a) is signed at the foot or end by the testator
or by some other person in the testators
presence and by his direction; and

• (b) the signature referred to in (a) is made or


acknowledged by the testator in the presence
of two witnesses present at the same time
who have also signed at the foot or end of the
Will’’
(a)A Will shall be valid if it is in writing
• Any written document duly executed
• Can be written on any material in whole or in part
• Can be any form of writing, printing, typewriting,
manuscript or a combination.
• Does not need to have any particular wording.
• Should be an intelligible document which shows
an intention to make a Will.
Goods of Slinn (1890) 15 P.D. 156
Goods of S S Moore (1892) P 378
• There is an exception of people in the defence forces, and
those who are terminally ill.
(b) Is signed at the foot or end by the testator or
by some other person in the testator’s presence
and by his direction. (Section 6 (1) (a)).
• The testator’s signature may be in any way
provided there is an intention to execute a Will.
• Can be initials, stamp, mark, name, assumed
names
• or thumbprint.(even when testator can write)
Re Jenkins (1931) 2 Ch 218 (rubber stamp)
Re Finn (1935) All ER 419 (thumb print)
In the Gods of Chalcraft (1948) 1 All ER 700
Khaw Cheeng Bok v Khaw Cheng Poon (1998)
Khaw Cheng Poon v Khaw Cheng Bok (2005) 6
MLJ 540
• the same principle applies to a signature
by someone on behalf of the testator.
• When someone signs on behalf of the
testator the signature must be made in
the presence of the testator and must be
authorised by him/her.
(c) The signature must be at the foot or
end of the Will
• Effect of this requirement is that it must be
apparent from the face of the Will that the
testator intended to give effect to the
whole Will.
Estate of Little (1960) 1. W.L.R 495
• Insertions after the signing of the Will or
which follows the signature will not be
admitted to probate
eg. a sentence that begins on a signed page and
ends on an unsigned page will not be admitted
to probate unless it is incorporated by some
words above the signature such as ‘’see other
side for completion’’
Palin v Ponting (1930) P. 185
Re Hornby (1946) 2 All ER
Re Roberts (1881) 19 Ch D 520
(d) The signature of the testator is made or
acknowledged by the testator in the presence of two
witnesses present at the same time, who have also
signed at the foot or end of the Will. Section 6 (1) b))
• There are two options given:
i) The testator must sign in the presence of the witnesses; or
Casson v Dade (1781) 1 Bro CC 99
ii) The testator must acknowledge his signature in the presence of
two witnesses.
Betts v Ganne (1930) 19 TLR 304
• It is not sufficient for the testator to
acknowledge his signature to each witness in
turn.
• The acknowledgement mast be made in the joint
presence of the witnesses.
• The acknowledgement maybe by gesture
• The witnesses must at the same time of the
acknowledgement see or have the opportunity of
seeing the signature of the testator.
• Applies to signature by someone on behalf of
the testator.
• What is important is for the testator to
acknowledge or confirm the signature to be
his in the presence , both physically and
mentally of the two witnesses who must be
present at the same time and who must
thereafter also sign.
Moon v King (1842) 3 Curt 243
Morrit v Douglas
Inglesant v Inglesant
• It is not important for the witnesses to know the
nature of the document that they attest.
• If the Will is signed in the absence of witnesses, it is
important for the witnesses to see the signature or
be in a position to see either the whole of the
signature or part.
• not necessary for the witnesses to sign in the
presence of each other.
Brown v Skirrow (1902) P. 3; 85 L.L. 645
• Thus a blind or non compos mentis person
cannot be a witness to a Will.
• The acknowledgment of the signature of the
testator should not be done through a third
party
See Morrit v Douglas and contrast with Inglesant
v Inglesant.
(e) the witnesses must also sign at the foot or end of
the Will. Section6 (i) (b).
• The testator must physically and mentally be
present when the witnesses sign.
In the Goods of Chalcraft (1948)
• The witnesses must sign after the testator has
acknowleged.
Moon v King (1842) 3 Curt 243
• It is the testator’s signature that the witnesses
acknowledge or confirm.
Wyatt v Berry (1893)
• Signatures on the will are to be in correct
sequence.
• Sometimes an attestation clause is inserted at
the end of the Will to indicate how the Will
was signed.
• When the clause is not in the Will, an affidavit
of due execution is made.
• The affidavit is made by either an attesting
witness or witnesses or a third party who was
present at execution.
• The clause is not necessary to make a will
valid but necessary to facilitate a grant
Example of an attestation clause:

SIGNED by the said ZUZE LUNGU as and for his last Will
and Testament in the presence of us both present at
the same time who at his request in his presence and in
the presence of each other have hereunto subscribed
our names as witnesses
Presumption of due execution
• If a will on the face of it appears to be
duly executed, the presumption is in
favour of due execution.
• Where there is a proper attestation clause, ,
the presumption will apply.
• In the absence of the clause the court will
require evidence that it was duly executed.
Evidence to rebut the presumption
• The burden of proving due execution whether by
presumption or by positive evidence rests on the
propounder.
• Evidence of attesting witnesses rebuts the
presumption.
• The presumption of due execution applies both
where the testator has himself signed the will and
where it has been signed by his direction.
WHO CAN BE A WITNESS TO A WILL
Section 6 (2) provides that:
“Any person who is not blind and is of sound mind
can be a witness to a will.”
• a blind person is incapable of being a witness to a Will
because it cannot be signed in his “presence” and
cannot be a “witness” to a visible action such as
signing.
In the Estate of Gibson (1949) P. 434 ( can be a possibility
in peculiar circumstances to a will written and signed in
braille if the testator acknowledges his signature.
• The requirement that the signature shall be made
or acknowledged in the “presence” of two
witnesses needs their mental and bodily
presence
In Hudson v Parker(1844) it was enunciated that:
“Witnesses should see and be conscious of the act
done, and be able to prove it by their own
evidence; if witnesses are not to be mentally as
well as bodily present, they might be asleep, or
intoxicated or of unsound mind”.
• It is desirable to choose literate witnesses of
sound mind mental capacity and of fixed
residence in the event that they may be later
required to give evidence as to the validity of
the Will.
• Section 8 deprives a witness and his or her
spouse of any benefit under the Will which
the witness attests. (Shall be discussed in
detail under failure of gifts).
• Young persons and illiterate witnesses while
competent should be avoided.
• The law relating to who cannot witness does
not affect the validity of the Will but the gift.
• It does not invalidate the Will.
• Purpose of two witnesses is to prove, if
required the circumstances around the actual
execution.
• No person is too incapable of credit to prove
the execution of a will
• However care should be taken in the selection
of witnesses.
Cont’d…

• Young persons and illiterate witnesses while


competent should be avoided.
• Persons of good credit and known honesty
and if possible persons who could have no
likelihood of being beneficiaries' under the
will in order that no suspicions may be raised
as to due execution.
• The beneficiary will lose the gift but will be
competent as a witness to prove due
execution. Section 8 (a) Wills Act
• If spouse is named as a beneficiary of a Will.
Re Young (1951) Ch 344
Thorpe v Bestwick (1881) 6 QBD 311
• Law provides that the witness remains valid
but the actual gift to the witness (spouse )
fails.
Cont’d…

• Witnesses should be mature, competent and


independent.
• Independence of the witness is key.
• Could be claimed that the testator was placed
under pressure to sign the Will.
• Therefore, family members not considered to
be independent.
Cont’d…

• Section 8(a), (b) and (c) provides that


beneficiary who witnessed the execution of a
Will shall lose his gift under the Will, provided
that:
• beneficiary shall be competent witness to
prove the execution of the Will and its
validity.
• Beneficiary shall not lose his/her gift if
he/she witnessed a codicil confirming the
Will.
Cont’d…

• Witness shall not lose gift if at least two


other witnesses attested the Will, who are
not beneficiaries under the Will, and the
Will is duly executed.
• A will shall not be invalid by reason that at
the time of execution any person
witnessing the execution was is
incompetent to be admitted as a witness to
prove its execution. Section 9 Wills Act
• A creditor who witnessed the execution of a
will or an executor of a will is a competent
witness to prove the execution or validity of a
will.
See section 10 and 11 of the Wills Act

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy