PART VII

Wills

76. —A person may by his will, executed in accordance with this Act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves on his personal representatives.

77. —(1) To be valid a will shall be made by a person who—

(a) has attained the age of eighteen years or is or has been married, and

(b) is of sound disposing mind.

[1964 (No. 7) s. 7 (7)]

(2) A person who is entitled to appoint a guardian of an infant may make the appointment by will notwithstanding that he is not a person to whom paragraph (a) of subsection (1) applies.

78. —To be valid a will shall be in writing and be executed in accordance with the following rules:

1. It shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction.

2. Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.

3. So far as concerns the position of the signature of the testator or of the person signing for him under rule 1, it is sufficient if the signature is so placed at or after, or following, or under, or beside, or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will.

4. No such will shall be affected by the circumstances—

(a) that the signature does not follow or is not immediately after the foot or end of the will; or

(b) that a blank space intervenes between the concluding word of the will and the signature; or

(c) that the signature is placed among the words of the testimonium clause or of the clause of attestation, or follows or is after or under the clause of attestation, either with or without a blank space intervening, or follows or is after, or under, or beside the names or one of the names of the attesting witnesses; or

(d) that the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature; or

(e) that there appears to be sufficient space 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;

and the enumeration of the above circumstances shall not restrict the generality of rule 1.

5. A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.

79. —(1) An appointment made by will, in exercise of any power, shall not be valid unless it is executed in accordance with this Act.

(2) Every will so executed shall, so far as concerns its execution and attestation, be a valid execution of a power of appointment by will, notwithstanding that it has been expressly required that a will made in exercise of such power shall be executed with some additional or other form of execution or solemnity.

80. —Every will executed in accordance with this Act shall be valid without any other publication thereof.

81. —If a person who attests the execution of a will is, at the time of execution or at any time afterwards, incompetent to be admitted a witness to prove the execution, the will shall not on that account be invalid.

82. —(1) If a person attests the execution of a will, and any devise, bequest, estate, interest, gift, or appointment, of or affecting any property (other than charges and directions for the payment of any debt or debts) is given or made by the will to that person or his spouse, that devise, bequest, estate, interest, gift, or appointment shall, so far only as concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under that person or spouse, be utterly null and void.

(2) The person so attesting shall be admitted as a witness to prove the execution of the will, or to prove the validity or invalidity thereof, notwithstanding such devise, bequest, estate, interest, gift, or appointment.

83. —If by will any estate is charged with any debt or debts, and a creditor, or the spouse of a creditor, whose debt is so charged, attests the execution of the will, the creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of the will, or to prove the validity or invalidity thereof.

84. —A person shall not, by reason only of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of the will, or a witness to prove the validity or invalidity thereof.

85. —(1) A will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not.

[1837 (c. 26) ss. 19, 20]

(2) Subject to subsection (1), no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

86. —An obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will.

87. —No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.

88. —Where, subsequently to the execution of a will, a conveyance or other act is made or done relating to any estate comprised in the will, except an act by which the will is revoked, the conveyance or act shall not prevent the operation of the will with respect to any estate or interest in the property which the testator has power to dispose of by will at the time of his death.

89. —Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.

90. —Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.

91. —Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.

92. —A general devise of land shall be construed to include leasehold interests as well as freehold estates, unless a contrary intention appears from the will.

93. —A general devise of land shall be construed to include any land which the testator may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears from the will; and in like manner a general bequest of the personal estate (other than land) of the testator shall be construed to include any such estate which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears from the will.

94. —Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from the will.

95. —(1) An estate tail (whether general, in tail male, in tail female or in tail special) in real estate may be created by will only by the use of the same words of limitation as those by which a similar estate tail may be created by deed.

(2) Words of limitation contained in a will in respect of real estate which have not the effect of creating an estate in fee simple or an estate tail shall have the same effect, as near as may be, as similar words used in a deed in respect of personal property.

96. —In a devise or bequest of real or personal estate, the words “die without issue”, or “die without leaving issue”, or “have no issue”, or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in his lifetime or at the time of his death, and not an indefinite failure of his issue, unless a contrary intention appears from the will.

97. —Where a person to whom real estate is devised for an estate tail or an estate in quasi entail dies in the lifetime of the testator leaving issue who could inherit under the entail, and any such issue is living at the time of the death of the testator, the devise shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will.

98. —Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is living at the time of the death of the testator, the gift shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will.

99. —If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.

100. —Where a person is entitled under a will to—

(a) land for an estate in fee simple or for any lesser estate or interest not being an estate tail, or

(b) any interest in other property,

with an executory limitation over in default or failure of any of his issue, whether within a specified period of time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue of the class in default or failure of which the limitation over was to take effect.