Gambar halaman
PDF
ePub

witnesses

8. 8.

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

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; Fout v. Stunton, 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 Declara

tions by will are inadmissible as evidence of its due execution. testator. In bonis Ripley, 1 Sw. & T. 68; see 1 P. D. 227.

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. Signa

ture by the first place the will must be signed at the foot or end thereof by the testator, or by some other person in his presence or by his direction.

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. Sueetland, 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. Gaisford, 3 Sw. & T. 93; 11 W. R. 854.

testator.

to execute Assumed name.

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

593. Seal. 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. Dry pen.

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. Signature Another person, though he may be also an attesting by agent.

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. Connec- The sheets of which a will consists need not be severally tion of 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.

By the Wills Act Amendment Act, 18.52 (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

a

with will.

Position of

a

signed as his will (a), and no will shall be affected by the circumstance that the signature shall not follow, or be immediately after the foot, or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation (1), either with or without a blank space intervening, or shall follow (c) or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause, or paragraph, or disposing part of the will shall be written (d) above the signature, or by the circumstance that there shall appear to be sufficient space (e) on or at the bottom of the preceding side or page, or other portion of the same paper on which the will is written to contain the signature. In bonis Jones, 34 L. J. P. 41; 4 Sw. & T. 1; In bonis Williams, 1 P. & D. 4; In bonis Coombs, 1 P. & D. 302 (a); In bonis Walker, 2 Sw. & T. 354 ; In bonis Cusmore, 1 P. & D. 653; In bonis Pearn, 1 P. D. 70 (1); In bonis Puddephatt, 2 P. & D. 97; In bonis Horsford, 3 P. & D. 211 (c); In bonis Wright, 34 L. J. P. 104; 4 Sw. & T. 35; Hunt v. Hunt, 1 P. & D. 209; In bonis Archer, 2 P. & D. 252; In bonis Wotton, 3 P. & D. 159 (d); In bonis Williams, 1 P. & D. 4 (e).

The same section enacts that no signature shall be Words operative to give effect to any disposition or direction

signature. which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. See In bonis Greator, 2 Jur. N. S. 1172; In bonis Dallow, 1 P. & D. 189; In bonis Ainsworth, 2 P. & D. 151; In bonis Deurle, 39 L. T. N. S. 93; In bonis Arthur, 2 P. & D. 273.

under

ture must be witnessed.

If the signature of the testator intended to be in execution of the will is followed by words intended to form part of the will, effect may be given to the part of the will preceding the signature, if that part in effect constitutes the whole of the dispositive portion of the will. Keating 6. Brooks, 2 Curt. 421; 4 N. of C. 260; In bonis Davis, 3 Curt. 748; In bonis Cotton, 6 N. of C. 307; 1 Rob. 658; see In bonis Topham, 7 N. of C. 272; 2 Rob. 189; Sweetland v. Sweetland, 4 Sw. & T. 6, in which case the question was whether there was a due execution of any part of the will.

The same rule applies if the words following the signature contain unimportant bequests or appoint executors only. In bonis Stanilley, 7 N. of C. 69; 1 Rob. 755; In bonis

Amiss, 7 N. of C. 274; 2 Rob. 116. 2. Signa- In the second place, the signature shall be made or

acknowledged by the testator in the presence of two or more witnesses present at the same time.

The signature of the testator must be written or acknowledged by the testator in the presence of both witnesses together, before either of them attest and subscribe the will. In bonis Allen, 2 Curt. 331 ; In bonis Olding, ib. 865 ; In bonis Byrd, 3 ib. 117; Moore v. King, ib. 243; Pennant v. Kingscote, ib. 643; In bonis Summers, 2 Rob. 295; Cooper v. Bockett, 3 Curt. 648; 4 Moo. P. C.

419; Hindmarsh v. Charlton, 1 Sw. & T. 433; 8 H. L. 160. Will not The Wills Act (1 Vict. c. 26), s. 14, provides that if void for incom- any person who shall attest the execution of a will shall, petency of witness, at the time of the execution thereof or at any time after

wards, be incompetent to be admitted a witness to prove the execution thereof, such will shall not, on that account, be invalid.

Section 15 enacts in effect that a will attested by a beneficiary under the will is valid, though the gift to the attesting witness is void,

real or

a

ture made

of witnesses.

Section 16 enacts that, in case by any will

any personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.

Section 17 enacts that no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof.

Where the testator writes something on the will in the a. Signapresence of the witnesses summoned to attest the will, it in presence will be presumed that he wrote his signature, though the witnesses may not see the signature and may not know that the document is his will. Smith v. Smith, 1 P. & D. 143. The acknowledgment may be by gestures. In bonis b. Ac.

knowledgDavies, 2 Rob. 337; In bonis Owston, 10 W. R. 410. Acknowledgment by a third person in the hearing of signature

already the testator, and acquiesced in by him, is an acknowledg- made. ment by the testator. In bonis Jones, Dea. & Sw. ö; In bonis Bosanquet, 2 Rob. 577; Faulds v. Jackson, 6 N. of C., supp. 12; Inglesant v. Inglesant, 3 P. & D. 172.

It is clear that if the will is acknowledged to be the Will actestator's will, and the witnesses see the signature of the ledged; testator, that is sufficient. In bonis Dinmore, 2 Rob. signature 641; In bonis Philpot, 3 N. of C. 2.

Further, if the testator acknowledges a document as Will his will, or gives the witnesses to understand that it is ledged ;

signature his will, it is not necessary that he should expressly acknowledge his signature, or even that the witnesses should see the signature, if there is nothing on the face of the will to lead to the presumption that the signature was added afterwards. Lloyd v. Roberts, 12 Moo. P. C. 158; In

ment of

know.

seen,

acknow

not seen,

« SebelumnyaLanjutkan »