Wills

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In general, if a will is to be valid the testator must be of full age and otherwise of sound testamentary capacity and the will must be executed with the formalities prescribed by section 9 of the Wills Act 1837.

Formalities

By section 9, (a) the will must be in writing (b) it must be signed by the testator or by someone else for him in his presence and at his direction; (c) the signature must be at the foot or end of the will; (d) the testator must make or acknowledge his signature in the presence of two witnesses present at the same time and (e) the witnesses must then attest the will in the presence of the testator (but not necessarily in the presence of each other). An attestation clause, i.e. a clause by which the witnesses certify that the will has been signed in their presence and that they have signed the presence of the testator, is commonly included. Such a clause is not legally necessary, but it greatly facilitates proof of the will after the testator's death.

One or two points on section 9 may be noticed here.

Any mark made by the testator counts as his signature for this purpose if it was designed to fulfil the function of a signature, i.e. to authenticate the document. Settlements

The provision that the signature must be at the foot or end of the will was greatly modified by the Wills Act Amendment Act 1852, which provides in effect that the signature shall be deemed to be at the foot or end, wherever it is in fact, if it is evident from the document that the signature was intended to authenticate the will; but nothing which was inserted after the will was signed, or which follows the signature in space, will form part of the will. Thus in a recent case the will was written on several sheets and the signatures of the testator and witnesses were on the top sheet, which was otherwise blank. It was held that the whole will was validly executed, as it was evident from the document that the signatures were intended to be read last.' Where (as in this illustration) the will is on several sheets only one of which is signed, those sheets must be fastened together at the time of execution; but it is sufficient for this purpose that they are held together by the pressure of the testator's thumb.'


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