CHAPTER II.

GENERAL CHARACTERISTICS OF TESTAMENTARY

INSTRUMENTS.

A GIFT intended to be testamentary can only be effectually made by an instrument duly executed as a will. Thus, a direction to give property to a person after the donor's death, where the donor retains full control of the property during his life, is invalid. Powell v. Hellicar, 26 B. 261; Fletcher v. Fletcher, 4 Ha. 79; Hughes v. Stubbs, 1 Ha. 481; Maguire v. Dodd, 9 Ir. Ch. 452; Farquharson v. Cave, 2 Coll. 356; Gough v. Findon, 7 Ex. 48.

In the same way a deed not intended to have any effect till the settlor's death is testamentary. Consett v. Bell, 1 Y. & C. C. 569; Rigden v. Vallier, 2 Ves. Sen. 253; Dillon v. Coppin, 4 M. & Cr. 647; In bonis Morgan, 1 P. & D. 214; Fielding v. Walshaw, 27 W. R. 492; In re Robson; Emley v. Davidson, 30 W. R. 257; Milnes v. Foden, 15 P. D. 105.

A voluntary settlement, though reserving to the settlor a life interest and containing a power of revocation, is not testamentary. Thompson v. Browne, 3 M. & K. 32. The case of A.-G. v. Jones, 3 Pr. 368, is overruled; see Marjoribanks v. Hovenden, Dru. 11, 27, 29; Sheldon v. Sheldon, 1 Rob. 83; Brown v. Adv.-G., 1 Macq. 79; see, too, Hope v. Harman, 11 Jur. 1097; Hope v. Hope, 10 B. 581.

Similarly, an instrument coming into operation immediately, and of which no part is revocable, more especially if it involves anything in the nature of consideration, cannot take effect as a will. In bonis Robinson, 1 P. & D. 384; see In bonis Halpin, I. R. 8 Eq. 567; Thorncroft v. Lashmar, 10 W. R. 783.

On the other hand, if a deed is in part clearly testamentary,

Chap. II.

testamentary.

such part may take effect as a will, though other parts are not Deed in part testamentary. Doe d. Cross v. Cross, 8 Q. B. 714; see Peacocke v. Monk, 1 Ves. 127; Belt, 82; Hogg v. Lashley, 3 Hag. 415, note; Bagnall v. Downing, 2 Lee, 3.

take effect as

Any instrument executed in the manner required by the What may Wills Act may take effect as a will, provided the intention was a will." that it should not operate till after the death of the donor.

Thus, the following instruments, being properly executed, have been allowed to take effect as testamentary dispositions:Orders on a savings bank, and on a banker. In bonis Marsden, 1 Sw. & T. 542; Jones v. Nicolay, 2 Rob. 288.

A cheque to take effect after death. Bartholomew v. Henley, 3 Phillim. 317.

A letter. Denny v. Barton, 2 Phillim. 575; In bon is Mundy, 2 Sw. & T. 119; 9 W. R. 171.

A

paper containing wishes and a dying request. In bonis Lowry, 5 N. of C. 619; In bonis Mundy, 2 Sw. & T. 119.

A deed of gift to take effect at death. Habergham v. Vincent, 2 Ves. J. 204; 4 B. C. C. 355; Thorold v. Thorold, 1 Phillim. 1; Shergold v. Shergold, cit. ib. 10; In bonis Montgomery, 5 N. of C. 99; In bonis Morgan, 1 P. & D. 214 ; Fielding v. Walshaw, 27 W. R. 492.

An instrument to take effect two years "after my wife's death if she survives me." In bonis Newns, 7 Jur. N. S. 688.

Where there is nothing to show that an instrument has reference to the death of the person executing it, it cannot have effect as a will. Glynn v. Oglander, 2 Hag. 428; King's Proctor v. Daines, 3 Hag. 218; Shingler v. Pemberton, 4 Hag. 359; Marjoribanks v. Hovenden, Dru. 11.

testamentary

But evidence is admissible to show that a deed or other Evidence of instrument of gift, which on the face of it is not testamentary, intention. was not intended to operate till the death of the person executing it. Cock v. Cooke, 1 P. & D. 241; Robertson v. Smith, 2 P. & D. 43; In bonis Coles, 2 P. & D. 362; In bonis Webb, 3 Sw. & T. 482; 10 Jur. N. S. 709; In bonis English, 3 Sw. & T. 586; In bonis Slinn, 15 P. D. 156.

And, conversely, evidence is admissible to show that an

Chap. II.

Intention to make will.

Instructions for will.

Will under power.

Contingent

will.

Will revocable.

instrument on the face of it testamentary was not intended to be a will. Nicholls v. Nicholls, 2 Phillim. 183; Lister v. Smith, 3 Sw. & T. 282; Trevelyan v. Trevelyan, 1 Phillim. 149; In bonis Nosworthy, 11 Jur. N. S. 570.

An instrument, expressing merely an intention of instructing a solicitor to prepare a testamentary instrument with a view to make a particular legacy, will not take effect as a testamentary instrument, where there is no extraneous evidence of testamentary intention. Coventry v. Williams, 3 Curt. 787.

A duly executed instrument described as instructions for a will may have effect as a will if it appears that it was intended to take effect in the absence of a more formal instrument. Bone v. Spear, 1 Phillim. 345; Torre v. Castle, 1 Curt. 303; 2 Moore P. C. 133; Barwick v. Mullings, 2 Hag. 225; Hattatt v. Hattatt, 4 Hag. 211; Whyte v. Pollok, 7 App. C. 400; see Ferguson-Davie v. Ferguson-Davie, 15 P. D. 109.

Since the Wills Act, sect. 10, an appointment by will insufficiently executed cannot be aided. In re Kirwan's Trusts, 25 Ch. D. 373.

A will may be made contingent upon the happening of an event, so that if the event does not happen the will has no effect. Roberts v. Roberts, 2 Sw. & T. 337; 31 L. J. P. 46.

Thus, if the testator makes his will conditional upon his death during a particular period which he survives, the will does not take effect. In bonis Porter, 2 P. & D. 22; In bonis Robinson, 2 P. & D. 171; In bonis Lindsay, 2 P. & D. 459. See In bonis Thorne, 4 Sw. & T. 36; 34 L. J. P. 131.

On the other hand, if the possibility of death during a particular period is given as the reason or motive why the testator makes his will, it is not contingent upon the happening of the death during that period. In bonis Dobson, 1 P. & D. 88; In bonis Martin, 1 P. & D. 380; In bonis Mayd, 6 P. D. 17; In bonis Stuart, 21 L. R. Ir. 105.

A testator may give to a third person the option of deciding whether a testamentary instrument executed by him shall take effect as a will or not. In bonis Smith, 1 P. & D. 717.

A will is in all cases revocable, even though the testator may declare it to be irrevocable. Vinyor's Case, 8 Rep. 82a.

A covenant not to revoke a will, or a covenant to execute a testamentary power of appointment, is a binding covenant, for breach of which an action will lie, though it cannot be specifically enforced. Robinson v. Ommanney, 23 Ch. D. 285; In re Parkin; Hill v. Schwarz, (1892) 3 Ch. 510.

Chap. II. Covenant not

to revoke.

Persons may make joint wills, which are, however, revocable Joint wills. at any time by either of them or by the survivor. Hobson v. Blackburn, 1 Add. 274; In bonis Stracey, Dea. & S. 6; In bonis Lovegrove, 2 Sw. & T. 453; In bonis Fletcher, 11 L. R. Ir. 359.

A joint will may be made to take effect after the death of both testators; and if the joint will is not a disposition by each testator of his own property, but a disposition of joint property after the death of the survivor, the will cannot be proved till the death of the survivor. In bonis Raine, 1 Sw. & T. 144.

In ordinary cases a joint will is looked upon as the will of each testator, and may be proved on the death of one. In bonis Stracey, 1 Jur. N. S. 1197; Dea. & S. 6; In bonis Miskelly, I. R. 4 Eq. 62, where In bonis Raine is disapproved.

It seems that two persons may agree to make mutual wills, Mutual wills. which remain revocable during the joint lives by either with notice to the other, but become irrevocable after the death of one of them if the survivor takes advantage of the provisions made by the other. Dufour v. Pereira, 1 Dick. 419; 2 Harg. Jur. Arg. 272; 2 Harg. Jur. Ex. 101; see 3 Ves. 416; Lord Walpole v. Lord Orford, 3 Ves. 401; Denyssen v. Mostert, L. R. 4 P. C. 236; Dias v. De Livera, 5 App. C. 123, P. C.

make a will.

For the effect of a promise to leave a person property by will, Promise to see Maddison v. Alderson, 8 App. C. 467; Humphreys v. Green, 10 Q. B. D. 148.

CHAPTER III.

Chap. III. General capacity.

Delusions.

TESTAMENTARY CAPACITY.

A TESTATOR must, at the time of making his will, have an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who have a claim to be the objects of his bounty, and the manner in which it is to be distributed. Harwood v. Baker, 3 Moo. P. C. 282; Longford v. Purdon, 1 L. R. Ir. 75.

The question of sanity is a question of fact, and there is no presumption that a testator is sane till the contrary is shown. Sutton v. Sadler, 5 W. R. 880; 3 C. B. N. S. 87; Symes v. Green, 1 Sw. & T. 401; Cleare v. Cleare, 1 P. & D. 655.

Where a testator is subject to delusions with regard to persons who would be the natural objects of his testamentary bounty, his will made while he is under the influence of such delusions is invalid. Dew v. Clark, 3 Add. 79; 5 Russ. 163; Waring v. Waring, 6 Moo. P. C. 341; Smith v. Tebbitt, 1 P. & D. 398; Boughton v. Knight, 3 P. & D. 64.

Where a testator is subject to delusions, which leave the general power of understanding unaffected and are wholly unconnected with his testamentary dispositions, such delusions do not affect his capacity to make a will. Banks v. Goodfellow, L. R. 5 Q. B. 549; Smee v. Smee, 5 P. D. 84; see Jenkins v. Morris, 14 Ch. D. 674; Murfett v. Smith, 12 P. D. 116.

A will made by a testator after he has been insane must be shown to have been made after his recovery or in a lucid interval. Groom v. Thomas, 2 Hagg. 433; A.-G. v. Parnther, 3 B. C. C. 443; Hall v. Warren, 9 Ves. 611; Waring v. Waring, 6 Moo. P. C. 341.