2734. Except in the case of soldiers on actual service, and sailors at sea, every will must be made in writing. It must be signed by the testator, or by some other person in his presence, and at his request, and the signature must be made or acknowledged in the presence of two or more witnesses, who are required to be present at the same time, who declare by signing that the will was signed by the testator, or acknowledged in their presence, and that they signed as witnesses in testator"s presence.
2735. By the act of 1852 it was enacted that no will shall be valid unless signed at the foot or end thereof by the testator, or by some person in his presence, and by his direction; but a subsequent act proceeds to say that every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him, be deemed 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 it that the testator intended to give it effect by such signature. Under this clause, a will of several sheets, all of which were duly signed, except the last one, has been refused probate; while, on the other hand, a similar doc.u.ment has been admitted to probate where the last sheet only, and none of the other sheets, was signed. In order to be perfectly formal, however, each separate sheet should be numbered, signed, and witnessed, and attested on the last sheet. This witnessing is an important act: the witnesses must subscribe it in the presence of the testator and of each other; and by their signature they testify to having witnessed the signature of the testator, he being in sound mind at the time. Wills made under any kind of coercion, or even importunity may become void, being contrary to the wishes of the testator. Fraud or imposition also renders a will void, and where two wills made by the same person happen to exist, neither of them dated, the maker of the wills is declared to have died intestate.
2736. A will may always be revoked and annulled, but only by burning or entirely destroying the writing, or by adding a codicil, or making a subsequent will duly attested; but as the alteration of a will is only a revocation to the extent of the alteration, if it is intended to revoke the original will entirely, such intention should be declared,--no merely verbal directions can revoke a written will; and the act of running the pen through the signatures, or down the page, is not sufficient to cancel it, without a written declaration to that effect signed and witnessed.
2737. A will made before marriage is revoked thereby.
2738. A codicil is a supplement or addition to a will, either explaining or altering former dispositions; it may be written on the same or separate paper, and is to be witnessed and attested in the same manner as the original doc.u.ment.
2739. WITNESSES.--Any persons are qualified to witness a will who can write their names; but such witness cannot be benefitted by the will. If a legacy is granted to the persons witnessing, it is void. The same rule applies to the husband or wife of a witness; a bequest made to either of these is void.
2740. FORM OF WILLS.--Form is unimportant, provided the testator"s intention is clear. It should commence with his designation; that is, his name and surname, place of abode, profession, or occupation. The legatees should also be clearly described. In leaving a legacy to a married woman, if no trustees are appointed over it, and no specific directions given, "that it is for her sole and separate use, free from the control, debts, and inc.u.mbrances of her husband," the husband will be ent.i.tled to the legacy. In the same manner a legacy to an unmarried woman will vest in her husband after marriage, unless a settlement of it is made on her before marriage.
2741. In sudden emergencies a form may be useful, and the following has been considered a good one for a death-bed will, where the a.s.sistance of a solicitor could not be obtained; indeed, few solicitors can prepare a will on the spur of the moment: they require time and legal forms, which are by no means necessary, before they can act.
I, A.B., of No. 10, ----, Street, in the city of ---- [gentleman, builder, or grocer, as the case may be,] being of sound mind, thus publish and declare my last will and testament.
Revoking and annulling all former dispositions of my property, I give and bequeath as follows:--to my son J.B., of ----, I give and bequeath the sum of ---; to my daughter M., the wife of J., of ----, I give and bequeath the sum of ---- [if intended for her own use, add "to her sole and separate use, free from the control, debts, and inc.u.mbrances of her husband"], both in addition to any sum or sums of money or other property they have before had from me. All the remaining property I die possessed of I leave to my dear wife M. B., for her sole and separate use during her natural life, together with my house and furniture, situate at No. 10, ---- Street, aforesaid. At her death, I desire that the said house shall be sold, with all the goods and chattels therein [or, I give and bequeath the said house, with all the goods and chattels therein, to ----], and the money realized from the sale, together with that in which my said wife had a life-interest, I give and bequeath in equal moieties to my son and daughter before named. I appoint my dear friend T.S., of ----, and T.B., of ----, together with my wife M.B., as executors to this my last will and testament.
Signed by A.B., this 10th day of October, 1861, in our presence, both being present together, and both having signed as witnesses, in the presence of the testator:--A.B.
T.S., Witness. F.M., Witness.
It is to be observed that the signature of the testator after this attestation has been signed by the witnesses, is not a compliance with the act; he must sign first.
2742. STAMP-DUTIES.--In the case of persons dying intestate, when their effects are administered to by their family, the stamp-duty is half as much more as it would have been under a will. Freehold and copyhold estates are now subject to a special impost on pa.s.sing, by the Stamp Act of 1857.
2743. The legacy-duty only commences when it amounts to 20 and upwards; and where it is not directed otherwise, the duty is deducted from the legacy.
2744. You cannot compound for past absence of charity by bequeathing land or tenements, or money to purchase such, to any charitable use, by your last will and testament; but you may devise them to the British Museum, to either of the two universities of Oxford and Cambridge, to Eton, Winchester, and Westminster; and you may, if so inclined, leave it for the augmentation of Queen Anne"s bounty. You may, however, order your executors to sell land and hand over the money received to any charitable inst.i.tution.
2745. In making provision for a wife, state whether it is in lieu of, or in addition to, dower.
2746. If you have advanced money to any child, and taken an acknowledgment for it, or entered it in any book of account, you should declare whether any legacy left by will is in addition to such advance, or whether it is to be deducted from the legacy.
2747. A legacy left by will to any one would be cancelled by your leaving another legacy by a codicil to the same person, unless it is stated to be in addition to the former bequest.
2748. Your entire estate is chargeable with your debts, except where the real estate is settled. Let it be distinctly stated out of which property, the real or personal, they are paid, where it consists of both.
2749. Whatever is _devised_, let the intention be clearly expressed, and without any condition, if you intend it to take effect.
2750. Attestation is not necessary to a will, as the act of witnessing is all the law requires, and the will itself declares the testator to be of sound mind in his own estimation; but, wherever there are erasures or interlineations, one becomes necessary. No particular form is prescribed; but it should state that the testator either signed it himself, or that another signed it by his request, or that he acknowledged the signature to be his in their presence, both being present together, and signed as witnesses in his presence. When there are erasures, the attestation must declare that--The words interlined in the third line of page 4, and the erasure in the fifth line of page 6, having been first made. These are the acts necessary to make a properly executed will; and, being simple in themselves and easily performed, they should be strictly complied with, and always attested.
2751. A witness may, on being requested, sign for testator; and he may also sign for his fellow-witness, supposing he can only make his mark, declaring that he does so; but a husband cannot sign for his wife, either as testator or witness, nor can a wife for her husband.