UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 3103 – LAW OF SUCCESSION

Succession/September, 2018/SB

WORKSHEET No. 1 CHARACTERISTICS OF A WILL

1. General Introduction.

A person who has died “testate” would have died leaving a valid will.

A will generally refers to the document/s in which a person expresses their intention in respect of
the matters which they wish to take effect on or after their death.

2. Definition of a will.
The testator's will is the document or documents in which the testator expresses their wishes and
states what they intend to become of their property at their death. It should embody the testator’s
will, meaning desire in the sense of volition, and it must comply with the statutory requirements
as to formalities.

Mellows on Succession defines a will as "a revocable declaration made in the prescribed form of
the intention of the person making it of the matters which he wishes to take effect after his death
until which time it is revocable"

See: Lemage v Goodban 1865 13 LT 508; (1865) LR 1 P & D 57, per Sir JP Wilde who defined
a will as follows:

"The will of a man is the aggregate of his testamentary intentions,

so far as they are manifested in writing, duly executed according to
statute..."

3. Characteristics of a will
The aforesaid definitions indicate that there are at least six characteristics of a will.
a. the scope of a will is not confined to dispositions of property;
b. it is always revocable;
c. it takes effect on death;
 d. is ambulatory (has no effect until testator dies);
e. a will operates only as a declaration of intention; and
f. it must usually be in prescribed form

a. The scope of the will is not confined to dispositions of property.

Although the principal aim in making a will is to dispose of property, a will may also be made
for the following reasons
i. to appoint executors and/or trustees
ii. to appoint special personal representatives
iii. to appoint guardians of infants
iv. to confer special powers on executors and/or trustees
v. to give directions as to burial or cremation, sanction the use of the body or parts thereof
for therapeutic or educational use
vi. to exercise a testamentary power of appointment given to testator under previous will or
settlement and which is exercisable by deed or will
vii. to revoke wills and/or codicils
viii. to exclude various equitable rules.

Re Skeats, Thain v Gibbs (1936) Ch 683

b. The will is always revocable.

This characteristic flows from the fact that a will only takes effect on death. A will may at any
time be revoked by the testator unless he ceases to be of unsound mind and thereby loses his
testamentary capacity. Even in cases where there is a contract not to revoke a will, the will itself
may be revoked although an action for damages for breach of contract may lie.
As in the case of joint or mutual Wills.

Vynior's Case 1609 8 Co Rep 816-

Will contained a declaration that it was not revocable.
Court held that declaration invalid.

Synge v Synge 1894 1 QB 466

Re Marsland 1939 3 AER 148 (CA)

c. Will takes effect on death of testator.

A will take effect on death only so that neither the beneficiaries nor the executors have any
interest whatever in the testator’s estate until his death. Acordingly, if a beneficiary dies between
the time when the will is made and the testator’s death, his estate will generally derive no benefit
under the will.
Re Currie's Settlement 1910 Ch 329.
 d. The will is ambulatory.
A will speaks from the death of the testator therefore it is capable of dealing with property
acquired by the testator after the date on which it was made provided it was owned by the
testator at his death.

e. The will is merely a declaration of the testator’s intention.

A will is said to be merely a declaration of the testator’s intention therefore

i. the testator is still free to dispose of the property inter vivos; and
ii. the executor has the authority to, and may sell the property during the course of
administering the estate.

Bullock vBennett 1855 7 DR GM & G 283

A.G.Jones and Bartlett 1817 3 Price 368, at p 391.

f. Must be in prescribed form.

In all cases other than Privileged Wills, a will must be in writing, signed at its foot or end by the
testator or by some other person in his presence and by his directions and must be witnessed by
at least two other persons

See:
Section 9 Wills Act UK 1837
Re Cohen 1960 Ch 179
Re Westminsters Deed of Appointment 1959 Ch 265.

4. Wills other transactions.

a. Gifts inter vivos

A will is distinguishable from a gift inter vivos with respect to the time when it takes effect as
well as to the formalities required.
As regards time, the general rule is that a gift inter vivos is effective at the time of the execution
of the deed whereas a gift by will takes effect only on the death of the testator, although a future
interest in property could also be conferred by inter vivos gift, so that the end product may be
similar to a gift by will.

As regards formalities, these are different. In the case of gift by will, the only formalities
required are that it must be in writing there must be the signature of the testator and the
attestation by at least two witnesses. In the case of gifts inter vivos the formalities vary and will
be dependent upon the type of property which is the subject of the gift. A gift of land for
example must be by deed, a gift of shares in a company must be by transfer and registration.

In practice little difficulty is experience in determining whether a document is intended to

operate as a will or to effect a gift inter vivos. It should be noted however that where an attempt
was made to create a gift inter vivos but that attempt has been ineffective the document by which
that attempt was made will not be regarded as a will even if it refers to the person's death. This is
so since a person must intend a document to take effect on death if that document is to be
admitted as a will.
Milnes v Fodin 1890 5 P &D 105
Dillon v Coppin 1839 4 My & Cr 647

b. Revocable settlement inter vivos.

A revocable settlement is an instrument which creates a present interest in property a will
confers only an interest upon the death of the testator.
If Andrew desires to leave his house to Benjamin may convey the house inter vivos to trustees to
hold upon trust for himself Andrew for life with remainder to Benjamin. Andrew may also
include a power of revocation in the deed. If Benjamin survives Andrew the effect of this
transaction would be the same as if the house had been given by Will.
It should be noted however that Benjamin acquires an interest in remainder in Andrew’s house
the moment the settlement is executed so that if Benjamin predeceases Andrew without Andrew
revoking the settlement, Benjamin’s estate will take the interest which Benjamin would have
taken had he survived.

c. Donatio mortis causa

Donatio mortis causa is a revocable gift by a person made in contemplation of his/her
impending death and conditional upon that death. It is a type of gift which is midway between a
gift inter vivos and gift by will. It consists of a gift made by a person during his lifetime with the
intention that it will take effect only on that persons death and while the gift is conditional upon
their death, once that condition has been fulfilled the gift takes effect retroactively from the date
it was made. It follows therefore that the donor must have intended that the gift should be
absolute upon the condition being fulfilled.
See: Beaumont, Beaumont v Ewbank 1902 1 Ch 889, 892
A valid Donatio mortis causa must fulfill the following three conditions:
i. the gift must be made in contemplation of the donor's death;
ii. the donor must intend it to be conditional upon his/her death, but subject thereto to be
unconditional; and
iii. the donor must have parted with dominion over the asset.

5. Types of Wills
a. Standard will
This is the usual will made by one person alone and is intended to take effect unconditionally
upon his death.
See: Douglas-Menzies v Umphelby (1908) A.C. 224 287.

b. Variations of standard will

These are variations of a standard will which may be classified as conditional, joint and mutual
Wills.
i. Conditional Wills
A conditional will is one made with the intention that it shall take effect only upon the happening
of a specified event.
Re Thomas 1939 2 AER 567
Re Vines 1910 P 147
Re Govier 1950 P 237
In the Goods of Hugo 1877 2 PD 73
In the Goods of Spratt 897 P 23, 32
Corbett v Newey 1998 Ch 57; The Times 3 May, 1994
Re Parsons v Lanoe 1748 1 Ves Sen 187

Note that the court in interpreting a conditional will looks at-

a. the language of the document
b. the circumstances surrounding the making of the will
c. extrinsic evidence to determine whether the will is in fact conditional.
Corbett v Newey 1998 Ch 57; The Times 3 May, 1994

Joint Wills
Where two or more persons incorporate their testamentary wishes in a single document and
execute it in accordance with the statutory requirements as to formalities those persons are said
to have made joint Wills.
In the goods of Piazzi- Smyth, L. R. 1898,1 P. 7.
In the Estate of Heys 111 L. T. Rep. 941;(1914) P. 192)

Mutual Wills
These are wills made by two or more persons in one or two documents usually in substantially
the same terms and conferring reciprocal benefits following an agreement between them to make
such Wills and not to revoke them without the consent of the other.
It should be noted that this agreement is an enforceable contract. However since one of the
cardinal principles of the law of wills is that a will make always be revoked this Mutual will can
be revoked. This revocation may give rise to an action for breach of contract or breach of trust.
Upon the death of the first person, a trust arises in favour of the beneficiaries and upon any
attempt by the survivor to revoke, proceedings may also be taken for breach of trust.

Privileged Wills (Soldiers/Mariners)

See:
Section 11 Wills Act UK 1837
Section 7 Civil Law (Procedure Act) Guyana Cap 6:01
A privileged will is a will made without any formal requirements is maybe completely oral or it
may be completely written and if written it need not be signed or witnessed in the usual manner.
Note however, that it is still necessary to show an intention to make a will.
This class of Wills is available to a limited class of person in certain exceptional circumstances
such as members of the Armed Forces in actual military service Mariners or seaman at sea
Re Stable [1919] P. 7
''If I stop a bullet, everything of mine will be yours''
Re Wingham [1949] P. 187, per Denning L.J.
Re Gibson[1949] 2 All E.R. 90
Rapley's Estate, Re;Rapley v Rapley [1983] 3 All ER 248
In the Estate of; Newland, In the goods of Newland, [1952] P. 71; [1952] 1 All E.R. 841; [1952]
1 Lloyd's Rep. 280; [1952] 1 T.L.R. 896

7. Codicils.
A codicil is a testamentary document which modify or varies the terms of the will to which it
relates. The law and practice relating to the execution and attestation of codicils is the same as
that which is applicable to wills. A codicil is proved at the same time as the will to which it
refers and one grant issues in respect of all documents.
Tutorial Questions:

1. L.R., a 65 year old retired banker of Hague, executed a will on November 10th, 1995
in which she devised a 2 acre Lot of land at Werk en Rust her friend A.S. absolutely,
but should A.S. predecease her, the said land should go to the HR Church of God.
A.S. also executed a will in similar terms in which she devised a small house and
approximately 8000 sq. ft of land on which it stands at La Bonne Intention to L.R.
absolutely but should she predecease her, the said house and land should go to the
HR. Church of God. Both L.R. and A.S. have agreed not to revoke their respective
wills without the others consent. On July 2, 2000, the General Manager of the
MoBOil Company offered to L.R. a substantial sum of money to purchase the 2 acre
lot which she has devised to AS. L.R. wants to sell to the company but is uncertain as
to whether she can do this without incurring any legal penalties.

Advise LR.

2. CH executes a will which contains the following clause:

“I give and bequeath all that I own to my dear friend, J, absolutely.”

At the date of CH’s will she owned 2 properties, 2 motor cars and one motor tractor.
At the date of her death she owned 1 property and 4 motor cars. J finds out that six
months before her death CH gave 1 property and the motor tractor to his good friend
R.

Advise J.