PART II

WHAT IS A WILL?

Section 3 WA defines for us what a will is. But that definition appears not be Commented [GK1]: “Will” includes a codicil

conclusive.

The General Definition – “A will is a set of instructions valid at law on how the

testator intends his property to be dealt with after he has died.”

So a will is merely a declaration of intention and it is useless until the testator dies. Commented [GK2]: Before the testator dies, it is a mere
declaration of intention, but the moment he dies, the will
wakes up and begins to speak.
WHAT FORM DOES A WILL TAKE?

The law does not specify any form or any wording but it seems all what is required

is any intelligible document showing an intention to make a will. What we are saying

as regard a will is that any writing that shows an intention to make a will either on a

board, piece of paper, card board, a note or words spoken by the deceased person

can amount to a will for as long as those words and the medium on which they appear

communicate an intention to make a will.

Section 6(1) WA is illustrative whenever we want to discuss what makes a will

valid.

6. (1) A will shall be valid if it is in writing and –

(a) is signed at the foot or end, by the testator or by some other person in

the testator’s presence and by his direction; and

(b) the signature referred to in paragraph (a) is made or acknowledged by the

testator in the presence of two witnesses present at the same time who

have also signed at the foot or end of the will.

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Section 6(1) WA tells us that for a will to be valid, it must be in writing. But then

it would appear to us that for a will to be valid, it must be contained in some form of

an intelligible document communicating the intention to make a will.

We are guided further in part (a) of Section 6(1) that this document in writing must

have “some” form of signature on it which signature must appear at the foot or end

of the document. When we look at this document we must see a signature and it must

be placed at the foot or end of the will.

This signature we are talking about must have been put on the document by the

testator himself or by some person with the authority of the testator and in his

presence.

When we slide into part (b) we are guided that at the time the testator is placing

the signature on this written document or by someone for and behalf of the testator

in his presence, we expect to see two or more persons present. These two people Commented [GK3]: Witnesses

must be present at the same time when the testator places this signature NOT

at different times. These two must not only be present at the same time but they

must also place their signatures at the foot or end of the document.

#NB: They are placing their signatures not to witness the contents of the will but

they are witnessing to the signature that they would have seen placed on the will.

The two witnesses will attest to the signature not the contents.

WHAT WOULD HAPPEN IF THE TESTATOR SIGNS WITHOUT THE

PRESENCE OF WITNESSES?

Section 6(1)(b) WA guides us; if that is the position, he must acknowledge that the

signature that is on that particular document is his or that it was put there by his

direction. That he must acknowledge or confirm to at least two persons or witnesses

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who must be present at the same time when the acknowledgement or confirmation is

being done. But these witnesses should then place their signatures on the document

as well.

So technically: we must see at least 3 signatures on the document.

For a will to be valid it must be in writing and we must see at least three different

signatures.

WHAT AMOUNTS TO A SIGNATURE ON THE WILL?

Section 3 WA defines what would amount to a signature. “it includes a thumb print” Commented [GK4]: Anything is acceptable as a signature
irrespective of one’s educational status

It is true also that initials may amount to a signature, stamped name, assumed names,

an incomplete name, a mark may all amount to a signature.

This is the same even when you ask someone else to sign on behalf of the testator

and they put a mark. Certain facts in the exam questions you will be told that a

person put an “X” when signing. The examiner wants you to comment whether “X” can

be a signature.

WHAT IS MEANT BY FOOT OR END OF THE WILL?

The foot or end of the will is any part of the will after the end of the dispositions.

So visualise this – “If your will is two pages and the last sentence goes into the third

page. The last page only has one sentence at the top which is the last disposition.

That then becomes the foot or end of the will and you sign immediately just below

that. If you like you can leave the whole page blank in the middle but you leave room

for other to make other dispositions in the will so it is advisable to sign after the

last disposition.”

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 WHY SIGN AFTER THE DISPOSITIONS OR AT THE FOOT?

The effect of signing at the foot or end is that it must be apparent from the

testator or from the face of it that the testator intended to give effect to the

whole will.

#NB: If the testator signs anywhere before the foot or end of the dispositions,

it will be taken that all that comes or appears after the signatures came after

the Will had been signed and will be excluded from probate.

JULY 2014 QUESTION 8

You are the Legal Counsel in KCM and the Managing Director just called you into his

office. He offers you a cup of tea and asks you to witness his will which is lying on

his desk. He tells you his secretary has already done so. You notice the document

has one signature and is dated. Just then the secretary returns into the Managing

Director’s office. What is your reaction? [15 marks]

WHAT TO CONSIDER:

Who starts the signing of the will?

Execution of a will does not begin with witnesses and must be done in the presence

of at least two persons. Now that you are the three of you, the proper execution can

begin and you will have four signatures since there was already one before.

MARCH 2010 QUESTION 6

You are the in-house lawyer in Barclays Bank and are called into the Managing

Director’s office by his personal secretary.

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You find her alone in the office with the Managing Director’s will on his desk which

she asks you to sign next to her signature which is the only signature which you can

see on the will.

Just then the Managing Director walks in greets you and offers you a drink.

What is your reaction? [15 marks]

WHAT TO CONSIDER:

Who must start the signing first?

Does execution start with witnesses?

Who should acknowledge their signature?

Is a witness supposed to invite another witness to sign or it should be the testator

who invites them?

So now that you are the three of you, the signing can begin.

There will then be four signatures because one signature was improperly put on the

will.

WYATT v BERRY (1892) Held, “that the will was not duly executed in accordance

with the requirements of the law.”

Wyatt v Berry failed because there were 3 signatures alright but the manner in

which the signatures were put was improper. The testator acknowledged before two

witnesses but only one of them signed after the acknowledgement.

However, if the signature put there is that of the testator before the witnesses are

present and he acknowledges that it is his signature in the presence of the two

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witnesses and they proceed to sign, in this situation, only three signatures will

suffice.

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