Topic 2 – Definition and nature of a will

Definition of a will

The difficulty in recognizing a will arises in those few case where you have a document which may or may not be a Will, or actions which may or may not be testamentary (in which certain formalities have to be complied with as regards signing, witnesses etc). The most common type of definition is along the lines of "A Will is a document in a prescribed form by which a person disposes of his property after death".

There are a few problems with the above definition which will not help when you are not aware if a document is a will or not.

1. The first thing that is wrong with the above definition is that it says a Will is "a document in a prescribed form"; most Wills do have to be executed in a particular way but there now exists the general dispensing power under s.18A of the Wills, Probate and Administration Act 1898 (NSW) under which the Court may admit as a Will an unsigned or unwitnessed document. Not all Wills need be in the prescribed manner although they must be documents, not oral.

2. Secondly it says that it disposes of property and this is usual but it does not have to dispose of property, for example:-

A Will which merely revokes a former Will; a will which only appoints executors; A will which merely appoints guardians or trustees; a will which involves the exercise of testamentary power of appointment. If X has been given a gift by Will in the following terms "To "X" for life and then to such as her children as she may by deed or Will appoint and in default of such appointment to "Y"." If "X" makes a Will appointing the property to child"A" but is it disposing of any of "X's" property? It is really disposing of someone else's property.
A more accurate definition of a Will may be;
"A Will is a written declaration of intention with regard to matters which its maker wishes to take place on or after his or her death."

Nature of a will

SUCCESSION ACT 2006 - SECT 6
How should a will be executed?
6 How should a will be executed?
(cf WPA 7 and 9)
(1) A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
(2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
(4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity.
(6) This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity).

7 Form and manner of execution of wills
(1) A will is not valid unless:
(a) it is in writing, and
(b) it is signed by the testator, and
(c) it appears, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will, and
(d) the signature is made by the testator in the presence of 2 or more witnesses present at the same time or the signature is acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(e) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other or of any other witness).
(2) Without limiting paragraphs (d) and (e) of subsection (1), those paragraphs shall be taken to have been complied with if the following things happen in the following order:
(a) the signature of the testator is made or acknowledged by the testator in the presence of a witness (in this subsection called "the first witness"), and
(b) the first witness attests and signs the will in the presence of the testator, and
(c) the signature of the testator is acknowledged by the testator in the presence of one or more other witnesses and also of the first witness present at the same time, and
(d) the other witness, or at least one of the other witnesses, attests and signs the will in the presence of the testator (but not necessarily in the presence of the first witness or of any other witness).
(3) No form of attestation by a witness is necessary.
(4) In this section, a reference to the signing of a will by a testator includes a reference to the signing of the will by some other person who signs the will in the presence and by the direction of the testator.

1. General Nature of a Will
A  Will is a declaration of intention only; by making a Will you are not interfering with your power of disposition inter vivos. You may make a Will saying I leave my property "Blackacre" to "X", but that does not stop you from selling Blackacre before you die, in which case "X" will get nothing.

2. Revocation
A Will can always be revoked by the testator in his or her lifetime; it
is not really possible to make a Will that can not be revoke (may be if
you go insane).

3. However, you can make a valid contract as to the terms of a Will or a contract that a Will is not to be revoked and then recover damages or equitable remedies for breach of such a contract. But you can still revoke the Will.

Synge v Synge [1894]

Facts: A husband promised, in a letter signed by him, to leave his wife certain land if she married him. She married him and he then sold the land. She sued and recovered damages even though both were still alive.

4. If such a contract concerns an interest in land the contract must be in writing, in Synge v Synge it was in writing to comply with s.54 of the Conveyancing Act 1900.
5. However, a promise to leave the whole estate to someone does not have to be in writing; Palmer v Bank of New South Wales (1976). But you can not imply from such a promise a promise not to dispose of any property inter vivos.

6.  Mutual Wills
Even in the case of mutual wills, which involve an agreement not to revoke, are revocable as in Birmingham v Renfrew.

Mutual Wills are those made by two people with cross promises, in effect you have contracts. For example both people promise something like "If I make Will leaving everything too you you promise to make a Will leaving half your estate to my relatives". When there is an agreement like this either party can revoke with notice to the other without penalty, as the remedy lies in the hands of the parties, the person given notice that the other party is changing his/her Will can also change his/her Will.

But if one person dies without changing his Will and without proving that the other has done so during the life time of the first or the other changes it after the first one dies then equity may provide a remedy. Equity can make the deceased personal legal representative hold the estate on constructive trust. the terms of the trust being the terms of the Will he had promised to make. As an example if "H" and "W" promise each other that each would make a Will leaving their whole estate to the other on condition that when the other dies they will leave half the estate to "X" and the other half to the other's mother and they make mutual Wills confirming this then if "W" dies leaving the whole of her estate to "H" and "H" then revokes his Will and makes a new Will appointing "Y" as executor and leaving his estate to "A" then this is still a valid Will. However, in an action in equity by "W"*s mother equity will make the executor "Y" hold half the estate on trust for her and only the other half would go to "A".
Because you have two Wills in identical terms does not mean that they are mutual wills. To prove that they are mutual wills, they have to have an agreement that they are mutual wills, each relying on the other. This should be recited in the Will itself. Equity would not help a husband whose wife alters her will without telling him, as he can do so too.

7. Wills and Codicil
A will strictly means the totality of a person’s testamentary instruments. A person strictly only leaves one will. Even if you have lots of documents, such as codicils, they strictly form one will.

8. Formalities
You only have to follow the Will making formalities when you are making a will. Testamentary or disposition inter vivos.

Russell v Scott (1936)

Facts: in this case a woman opened a joint bank account with her nephew with the arrangement that she would use it during her life but that the balance would belong to the nephew after her death.

Held: It was contended that this was testamentary in nature and therefore should have been executed like a Will. The court held that this was not testamentary in nature because the vesting of title to the account took place immediately even though the nephew got no benefit until after the aunt died (joint tenancy of the account).

Bird v Perpetual Executors and Trustees Association of Australia (1946) - vesting of the property is intended to take place.

Facts: A man made a deed saying that his executors were to pay certain monies after his death.

Held: This was construed as a promise to take effect only after death and therefore was testamentary in nature because it really was a Will and should have had two witnesses, but being a deed only had one.

In looking at those two cases it seems that whether an instrument is testamentary depends upon when the vesting of the property is to take place. If it is intended that the vesting takes place immediately then it is a gift inter vivos or if the vesting of property is intended to take place upon the death of the testator or is depended upon the death of the making of the document then it is probably is testamentary and needs to be in the form of a Will.

9. Nominations [Life insurance Policies, Pension Schemes, Superannuation]

This is where in the above schemes, the contributor to the fund nominates to the life insurance company or the trustees of the pension scheme, the person or persons to whom the contributor wants the money paid in the event of the contributor’s death. The courts have always held that such nominations are not testamentary in nature (although they have always been vague about it and have said it in passing). The matter has been argued in:

McFadden v Public Trustee Association of Australia (Vic) [1981]

Facts: This was a contributory scheme. The deceased was a member of a contributory life assurance and pension scheme for the employees of a company. One of the rules of the scheme for the employees of the scheme said that in the event of the contributor dying before the age of 65, the money payable under the scheme would be held by the trustees for such dependant or dependants of the contributor as he had, as required by writing, before his death appointed. This election was revocable. It was argued by the legal personal representative of the contributor’s estate that both the rule and the nomination made under it were void because they were testamentary dispositions which were not executed in the manner in which a will was to be executed.

Held: Holland J held that by becoming a member of the scheme the contributor entered into an immediately binding contract for the creation of a trust for future property and the nomination of a beneficiary to take under the trust was an exercise of a contractual right so that any dispersive effect that the nomination had derived from the contract and the exercise of the contractual rights and therefore did not result from the death of the contributor and therefore was not testamentary in nature.

Delegation of will-making powers

As demonstrated in Chichester Diocesan Fun and Board of Finance v Simpson [1944], a person cannot delegate his or her will-making power.

There are two exceptions to this, general and special powers of appointment.

“I leave my estate to such as my three children as “X” may appoint” is a special power of appointment which designates the class of beneficiary and the donee of the power just has to select form within that class. It may be argued that in that case the testator has not really designated testamentary power very much as the testator knows that the estate will go to one or more within that confined class.

A general power of appointment may be such as “I give my estate to anyone that “X” may select. This may actually be a disposition to the donee of the power, it is giving it to “X” as “X” may give it to himself, rather than a general power of appointment.

Tatham v Huxtable

In this case, the clause actually meant “I authorize my executor to give the balance of my estate to any beneficiary named in my will or to anyone else who in his opinion has rendered me a service”. This clause was struck down by the court as it was delegation of will-making power.

Horan v James

In this case the Will said in effect "I give the residue of my estate to my trustees with power to transfer it to whom they may ever decide but specifically direct that they shall not in any circumstances exercise this power of appointment in favour of my wife": This is not a special power of appointment because it does not define the class of beneficiary; it is not a general power of appointment either as you can give it to any one except the wife and the trustees who can not profit by their trust. It is a hybrid power. Unlike the other cases you can not say it was uncertain. The case went on appeal from Helsham J. whom it appears upheld the gift on the ground that it did not fail for uncertainty. On appeal the court held that the gift failed and upheld the existence of the non-delegatable principle. Hybrid powers of appointment will fail on the ground of non-delegation.

Delegation of Will making powers may be allowed under special powers of appointment or general powers of appointment but you can not have it under a hybrid power of appointment, it will fail on the ground of non-delegation of power principle.