Outlines the section 9 formalities required to be followed when drafting a will with the relevant cases to support. It states the purposes and considerations to be made throughout the drafting process and the exceptions to certain rules.
The person that made the will must have testamentary capacity
This is looking at the regulatory framework that creates a will.
Client who wants to create a will.
- To do this, they must satisfy several conditions:
o The capacity, knowledge and intention to create a will.
o Executed that will, pursuant to the requirements of the Wills Act 1837
Will is not regarded as validly executed if you don’t correspond to the
requirements within the statute.
There is a question as to whether the requirements of the act need to be
changed.
o Drafted effectively to permit representatives to act.
Formalities
- The circumstances around the will and its execution
- S.9 Wills Act 1837 states that no will is valid unless:
o It is written (S.9(1)(a) WA 1837)
Usually taken to mean a piece of paper but a variety of materials have been
used (Hodson v Barnes) this dude, wrote his will on an ostrich eggshell
The Interpretation Act 1978 gives ‘writing’ a broad scope.
Typing
Printing
Other modes of representing words in a visible form
Most wills now are typed, printed and signed.
It’s unlikely to come across fully handwritten wills now.
There is an issue with wills partly in ink and partly in pencil as there’s a
presumption that the words in pencil were not intended to be there as in In
the Goods of Adams (1872)
There is no requirement as to language.
Wills in a different language are valid if it can be translated into
English or Welsh (Re Berger (Deceased) [1990])
In Kell v Charmer [1856] code known to the testator and their family
was used as it was capable of translation
o It is signed by the testator S.9(1)(a) WA 1837
The courts have given a generous interpretation of this provision.
Some kind of mark that is intended to be their signature.
o Hindmarsh v Charlton (1861)
In the Goods of Savory (1851) initials were held to be fine
In the Goods of Jenkins (1863) a stamped signature was held to be
sufficient
o Bit dangerous but alright
The courts require that the signature is completed.
In the Goods of Chalcroft (1948) the testator was weak and only
made it halfway through her name, but the court was satisfied it was
her intention for that to stand as her signature.
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