CHAPTER L.

SUGGESTIONS FOR PREPARING WILLS.

THE possible dispositions of property by testators are so infinitely various that general suggestions can be of very little use. The following points have however been selected as likely to be of frequent occurrence :—

1. With regard to payment of debts, if land is to be applied in exoneration of the personalty an express direction to that effect should be inserted.

2. The testator should consider whether mortgages are to be borne by the devisee or to be discharged out of the general personal estate. In the latter case a declaration to that effect should be inserted.

3. In the case of bequests to charities not empowered to take land by devise, proper directions as to payment out of pure personalty should be inserted.

4. In the description of the subject-matter of the testator's bounty language generally intelligible should be used. Thus terms of art, symbols, terms derived from local custom and so on should be avoided.

5. Things should be described by their permanent and not by their changeable characteristics; for instance, description of land by occupation should be avoided.

6. In the case of specific bequests care should be taken to ascertain the exact title of the stock or other security which is the subject of the bequest and the testator should be reminded of the liability of specific gifts to ademption by change of security or sale.

7. Inquiry should be made whether annuities given by the will are intended to be for the lives of the annuitants only or perpetual.

8. Residuary gifts should be expressed in the most general terms and enumeration of particular things should be avoided.

9. When a residue is given to several persons in succession, the testator should consider whether the tenant for life is intended to enjoy the property in the state in which it may be found at the testator's death or whether it is to be converted.

10. In the description of persons the same general caution applies as in the description of things.

11. If the gift is to a husband and wife with others, care should be taken to secure that the wife should take a separate share.

12. In the case of gifts to several persons or to classes words of severance should be introduced unless a joint tenancy is intended.

13. If illegitimate children are to be provided for, the fact that illegitimate children are intended should be unmistakeably expressed.

14. In the case of bequests to children, where it is possible that children may be born after the period of distribution has arrived, the testator should consider whether he wishes all the children to be included, and, in the latter event, clear words to that effect should be introduced.

15. In the case of gifts to several classes of persons or to different generations of issue, if the distribution is intended. to be per stirpes there should be words to that effect.

16. It will as a rule be found advisable to avoid such vague terms as relations or family.

17. In gifts of personalty, words whether of purchase or limitation appropriate to realty should be avoided, and the same applies mutatis mutandis to devises.

18. In the case of gifts to a parent and children, or to a parent and issue, care should be taken to show whether the children or issue were intended to take concurrently with their parent or not.

19. The difficulties arising upon the rule in Shelley's case are too familiar to need comment. 33

20. The testator should be careful to distinguish between a recommendation and an obligation intended to be imposed on a legatee and in cases where he merely desires to express a wish there should be an express declaration that no trust is intended.

21. Clear directions should be inserted with regard to vesting in cases where bequests are intended to be contingent upon the attainment of a given age and care should be taken to bring clearly before the testator's mind the distinction between payment and vesting.

22. In the case of conditions imposed upon legatees there should be a gift over in the event of a clear and definite breach and care must be taken that the breach should accurately correspond with the condition. Testators should, however, be warned that to impose any but the simplest conditions upon legatees is as a rule an invitation to litigation.

23. Care should be taken that the dispositions of the testator do not infringe the rule against perpetuity and that there is no trust for accumulation beyond the limits. allowed by statute.

24. In substitutional gifts to children inquiry should be made whether any persons satisfying the description of the members of the original class are dead at the date of the will leaving children and provision should be made accordingly.

25. In survivorship clauses, it should be clearly indicated to what period survivorship is to be referred, and whether survivorship is contemplated between individuals or between stirpes.

653

APPENDIX.

1 VIC. CAP. XXVI.

AN ACT FOR THE AMENDMENT OF THE LAWS WITH

RESPECT TO WILLS. [3RD JULY, 1837.]

certain

BE it enacted by the Queen's most Excellent Majesty, by and with Meaning of the Advice and Consent of the Lords Spiritual and Temporal, and words in Commons, in this present Parliament assembled, and by the Autho- this Act : rity of the same, That the Words and Expressions hereinafter mentioned, which in their ordinary Signification have a more confined or a different Meaning, shall in this Act, except where the Nature of the Provision or the Context of the Act shall exclude such Construction, be interpreted as follows: (that is to say,) the Word "Will" shall "Will:" extend to a Testament, and to a Codicil, and to an Appointment by Will or by Writing in the Nature of a Will in exercise of a Power, and also to a Disposition by Will and Testament or Devise of the Custody and Tuition of any Child, by virtue of an Act passed in the Twelfth Year of the Reign of King Charles the Second, intituled An 12 Car. 2, Act for taking away the Court of Wards and Liveries, and Tenures in c. 24. capite and by Knights Service, and Purveyance, and for settling a Revenue upon His Majesty in lieu thereof, or by virtue of an Act passed in the Parliament of Ireland in the Fourteenth and Fifteenth Years of the Reign of King Charles the Second, intituled An Act for taking 14 & 15 Car. away the Court of Wards and Liveries, and Tenures in capite and by 2 (I.). Knights Service, and to any other Testamentary Disposition; and the Words "Real Estate" shall extend to Manors, Advowsons, Messuages, "Real Lands, Tithes, Rents, and Hereditaments, whether Freehold, Customary Freehold, Tenant Right, Customary or Copyhold, or of any other Tenure, and whether corporeal, incorporeal, or personal, and to any undivided Share thereof, and to any Estate, Right, or Interest (other than a Chattel Interest) therein; and the Words "Personal "Personal Estate" shall extend to Leasehold Estates and other Chattels Real, Estate:" and also to Monies, Shares of Government and other Funds, Securities for Money (not being Real Estates), Debts, Choses in Action, Rights, Credits, Goods, and all other Property whatsoever which by Law devolves upon the Executor or Administrator, and to any Share

Estate:"

or Interest therein; and every Word importing the Singular Number Number: only shall extend and be applied to several Persons or Things as well as One Person or Thing; and every Word importing the Mas- Gender culine Gender only shall extend and be applied to a Female as well as a Male.

Repeal of

of Wills, 32

Hen. 8, c. 1, and 34 & 35

Hen. 8, c. 5.

10 Car. 1,

(I.).

Secs. 5, 6,

12, 19, 20,

of Frauds, 29 Car. 2,

c. 3; 7 Will. 3, c. 12 (I.).

Sec. 14 of

c. 16.

II. And be it further enacted, That an Act passed in the Thirtythe Statutes second Year of the Reign of King Henry the Eighth, intituled The Act of Wills, Wards, and Primer Seisins, whereby a Man may devise Two Parts of his Land; and also an Act passed in the Thirty fourth and Thirty-fifth Years of the Reign of the said King Henry the Eighth, intituled The Bill concerning the Explanation of Wills; ani also an Act passed in the Parliament of Ireland, in the Tenth Year of Sess. 2, c. 2, the Reign of King Charles the First, intituled An Act how Lands, Tenements, etc. may be disposed by Will or otherwise, and concerning Wards and Primer Seisins; and also so much of an Act passed in the 21, and 22 of Twenty-ninth Year of the Reign of King Charles the Second, intituled the Statute An Act for Prevention of Frauds and Perjuries, and of an Act passed in the Parliament of Ireland in the Seventh Year of the Reign of King William the Third, intituled An Act for Prevention of Frauds and Perjuries, as relates to Devises or Bequests of Lands or Tenements, or to the Revocation or Alteration of any Devise in Writing of any Lands, Tenements, or Hereditaments, or any Clause thereof, or to the Devise of any Estate pur autre vie, or to any such Estate being Assets, or to Nuncupative Wills, or to the repeal, altering, or changing of any Will in Writing concerning any Goods or Chattels or Personal Estate, or any Clause, Devise, or Bequest therein; and also so much of an Act passed in the Fourth and Fifth Years of the 4 & 5 Anne, Reign of Queen Anne, intituled An Act for the Amendment of the Law and the better Advancement of Justice, and of an Act passed in the Parliament of Ireland in the Sixth Year of the Reign of Queen Anne, intituled An Act for the Amendment of the Law and the better Advancement of Justice, as relates to Witnesses to Nuncupative Wills; and also so much of an Act passed in the Fourteenth Year of the Reign of King George the Second, intituled An Act to Amend the Law concerning Common Recoveries, and to explain and amend an Act made is the Twenty-ninth Year of the Reign of King Charles the Second, intituled 'An Act for Prevention of Frauds and Perjuries,' as relates to Estates pur autre vie; and also an Act passed in the Twenty-fifth c. 6 (except Year of the Reign of King George the Second, intituled An Åct for avoiding and putting an end to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning Real Estates in that Part of Great Britain called England, and in His Majesty's Colonies and Plantations in America, except so far as relates to His Majesty's Colonies and Plantations in America; and also an Act passed in the Parliament of Ireland in the same Twenty-fifth Year of the Reign of King George the Second, intituled An Act for the avoiding and putting an end to certain Doubts and Questions relating to the Attestations of Wills and Codicils concerning Real Estates; and also an Act passed in the Fifty-fifth Year of the Reign of King George the Third, intituled An Act to remove certain Difficulties in the Disposition of Copyhold Estates by Will, shall be and the same are hereby repealed, except so far as the same Acts or any of them respectively relate to any Wills or Estates pur autre vie to which this Act does not extend.

6 Anne

c. 10 (I.).

Sec. 9 of 14 Geo. 2, c. 20.

25 Geo. 2,

as to Colo

nies).

25 Geo. 2, c. 11 (I.).

55 Geo. 3, c. 192.

All property may be disposed of by Will,

III. And be it further enacted, That it shall be lawful for every Person to devise, bequeath, or dispose of, by his Will executed in manner hereinafter required, all Real Estate and all Personal Estate which he shall be entitled to, either at Law or in Equity, at the Time of his Death, and which, if not so devised, bequeathed, or disposed of would devolve upon the Heir at Law, or Customary Heir of him, or, if he became entitled by Descent, of his Ancestor, or upon his