Knowledge of contents.

CHAPTER IV.

REQUISITES FOR A VALID WILL.

No will can be valid of which the testator does not know and approve the contents. Barry v. Butlin, 2 Moo. P. C. 480; In bonis Duane, 8 Jur. N. S. 752; 31 L. J. P. 173; Sutton v. Sadler, 3 C. B. N. S. 87; 26 L. J. C. P. 284; Hastilow v. Stobie, 1 P. & D. 64; Cleare v. Cleare, ib. 655; In bonis Hunt, 23 W. R. 553; 3 P. & D. 250; overruling Cunliffe v. Cross, 3 Sw. & T. 37 ; 32 L. J. P. 68. Delegation A testator cannot, therefore, delegate his testamentary mentary power to another person; that is to say, he cannot adopt and execute a will made for him without knowing its contents. Hastilow v. Stobie, 1 P. & D. 64; Cleare v. Cleare, ib. 655. See ante, p. 12.

of testa

power.

Legatee preparing will must

prove know

ledge.

Fiduciary relation.

Where a person writes or prepares a will under which he takes a benefit, it lies upon him to show that the will or the particular clause under which he takes a benefit, expresses the true will of the testator. The evidence of the beneficiary alone is insufficient. Paske v. Ollatt, 2 Phillim. 323; Ingram v. Wyatt, 1 Hagg. 388; Billinghurst v. Vickers, 1 Phillim. 187; Baker v. Batt, 2 Moo. P. C. 317; Scoular v. Plowright, 5 W. R. 99; 10 Moo. P. C. 440; Fulton v. Andrew, L. R. 7 H. L. 448; Hegarty v. King, 5 L. R. Ir. 249; 7 ib. 18.

But the influence of a person standing in a fiduciary relation to the testator may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing and is a free agent; and the

burden of proof of undue influence lies upon those who assert it. Hindson v. Wetherill, 6 D. M. & G. 301; Walker v. Smith, 29 B. 394; Parfitt v. Lawless, 2 P. & D. 462.

The rules therefore applicable in the case of gifts inter vivos to persons standing in a fiduciary relation to the donor do not apply to wills. In the case of gifts inter vivos, such persons have to show not only that the donor intended to give, but that his intention was not influenced by the donee, a burden of proof which in most cases it is practically impossible to discharge, at any rate so long as the fiduciary relation subsists.

influence.

To establish a case of undue influence, it must be shown Undue that fraud or coercion has been practised on the testator in relation to the will itself, not merely in relation to other matters or transactions. Boyse v. Rossborough, 6 H. L. 2; Hall v. Hall, 1 P. & D. 481. See Longford v. Purdon, 1 L. R. Ir. 75.

If a testator is prevented by threats from altering his will, the Court of Probate may, if the case is proved, declare the persons exercising the coercion trustees of the benefits they take under the will. Betts v. Doughty, 5 P. D. 26.

over.

A will which has been read over to the testator, or the Will read contents of which have been brought to his notice before execution, must, in the absence of fraud or coercion, be presumed to have been approved by him. Guardhouse v. Blackburn, 1 P. & D. 109; Goodacre v. Smith, ib. 359; Atter v. Atkinson, ib. 665.

mistake.

Clauses introduced into a will by fraud, accident or Fraud and mistake, without the knowledge of the testator, will be struck out of the will. In bonis Wray, I. R. 10 Eq. 267; In bonis Duane, 2 Sw. & T. 590; 31 L. J. P. 173; In bonis Oswald, 3 P. & D. 162.

But where a testator has executed a will with knowledge

Omission

of scandal

ous passages.

of the contents, nothing can be added or omitted from it after his death on the ground of mistake. In bonis Davy, 1 Sw. & T. 262; Guardhouse v. Blackburn, 1 P. & D. 109; Harter v. Harter, 3 P. & D. 11.

Where a residuary legatee prepares the will and is directed to give further legacies which he purposely omits, and at the time when the will is read over and executed the further legacies are not present to the mind of the testator as the residuary legatee knows, the will will nevertheless be admitted to probate. Mitchell v. Gard, 3 Sw. & T. 75.

The remedy in such a case would appear to be to have the residuary legatee declared a trustee so far as regards the legacies omitted. As to whether such a declaration must be obtained in the Probate Division at the time when the will is proved, see post, p. 69.

The Court has, it seems, power to direct a passage containing a gross libel to be omitted from the probate copy of the will, though it will not exercise the power merely on the ground that the charge is offensive and untrue. In bonis Wartnaby, 1 Rob. 423; and Marsh v. Marsh, 1 Sw. & T. 528, 536, passages omitted. Curtis v. Curtis, 3 Add. 33; and In bonis Honywood, 2 P. & D. 251, omission refused. Proof by A will perfect on the face of it and signed by the tesexecutor. tator and having an attestation clause reciting that the will has been signed and declared by the testator as his last will, in the presence of two witnesses, present at the same time, who in his presence, and in the presence of each other, have thereunto set their names as witnesses thereto, and signed by the witnesses accordingly, is prima facie valid, and probate may be obtained on the oath of the executor only. Williams on Executors, 7th ed. 330.

Affidavit of witness.

In the absence of an attestation clause, or if the attestation clause does not state the performance of the necessary ceremonies, the will must be proved by an affidavit of one of the witnesses. Bryan v. White, 2 Rob. 315; Belbin

v. Skeats, 1 Sw. & T. 148; Bowman v. Hodgson, 1 P. & D. 362; In bonis Wilson, 1 P. & D. 269.

witnesses

If no evidence is obtainable from the attesting witnesses, Attesting the will will be presumed to have been duly executed, even dead. in the absence of an attestation clause. Burgoyne v. Showler, 1 Rob. 5; In bonis Luffman, 5 N. of C. 183; In bonis Dickson, 6 N. of C. 278; Vinnicomb v. Butler, 13 W. R. 392; In bonis Nicks, 34 L. J. P. 30; In bonis Rees, ib. 56; Foot v. Stanton, 1 Dea. 19; 2 Jur. N. S. 380; In bonis Torre, 8 Jur. N. S. 494; In bonis Puddephatt, 2 P. & D. 97; see In bonis Jones, 46 L. J. P. 80; Clarke v. Clarke, 5 L. R. Ir. 47.

Declarations by a testator that he has duly executed his Declarations by will are inadmissible as evidence of its due execution. testator. In bonis Ripley, 1 Sw. & T. 68; see 1 P. D. 227.

s. 8.

By the Wills Act (1 Vict. c. 26), section 8, it is enacted Wills Act, that no will shall be valid unless it shall be in writing and executed in manner thereinafter mentioned.

The requirements as to execution are as follows:-in 1. Signature by the first place the will must be signed at the foot or end testator. thereof by the testator, or by some other person in his presence or by his direction.

to execute

The signature of the testator must be intended as an Intention act of execution of the will. A signature to each page of the will, where the last page is left unsigned, is not primâ facie a sufficient execution. Sweetland v. Sweetland, 4 Sw. & T. 6; Burke v. Moore, I. R. 9 Eq. 609; In bonis Maddock, 3 P. & D. 169.

The mark of the testator is a sufficient signature Mark. whether he can write or not. Baker v. Dening, 8 A. & E. 94; Wilson v. Beddard, 12 Sim. 28; In bonis Bryce, 2 Curt. 325; In bonis Amiss, 2 Rob. 116; In bonis Douce 2 Sw. & T. 593; In bonis Clarke, 1 Sw. & T. 22.

A stamped name is sufficient. Jenkyns v. Guisford, 3 Sw. & T. 93; 11 W. R. 854.

Assumed

name.

Seal.

Dry pen.

Signature by agent.

Connec

tion of

with will.

Signature in an assumed name is sufficient. In bonis Glover, 5 N. of C. 553; In bonis Ridding, 2 Rob. 339; In bonis Clarke, 1 Sw. & T. 22; In bonis Douce, 2 ib. 593.

A seal is not sufficient. Smith v. Evans, 1 Wils. 313; Grayson v. Atkinson, 2 Ves. Sen. 459; Ellis v. Smith, 1 Ves. J. 13, 15; Wright v. Wakeford, 17 Ves. 459. The case of Lemayne v. Stanley, 3 Lev. 1; 1 Freem. 538, is overruled.

Passing a dry pen over a written signature is not enough. Casement v. Fulton, 5 Moo. P. C. 130; Playne v. Scriven, 1 Rob. 772; see Kevil v. Lynch, I. R. 9 Eq. 249.

Another person, though he may be also an attesting witness, may by the testator's direction sign the testator's name, or impress a stamp with the testator's name engraved on it, or sign his own name on behalf of the testator. Jenkyns v. Gaisford, 11 W. R. 854; 3 Sw. & T. 93; Clark's Case, 2 Curt. 329; In bonis Bailey, 1 Curt. 914; Smith v. Harris, 1 Rob. 262.

The sheets of which a will consists need not be severally signature signed by the testator nor be connected together, but they must be in the same room where the execution took place. Gregory v. Queen's Proctor, 4 N. of C. 620; Marsh v. Marsh, 1 Sw. & T. 528; Bond v. Seawell, 3 Burr. 1773.

But the signature must be physically connected with the will. In bonis Horsford, 3 P. & D. 211; In bonis M'Key, I. R. 11 Eq. 220.

Position of By the Wills Act Amendment Act, 1852 (15 & 16 Vict. signature. c. 24), section 1, it is provided that a will shall be valid if

the signature shall be so placed at or after or following or under or beside or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing