Execution PART VIII. OF THE EXECUTION OF UNPRIVILEGED WILLS1. 50. Every testator, not being a soldier employed in an of unprivi- expedition or engaged in actual warfare, or a mariner at sea, leged Wills. must execute his Will according to the following rules: First. The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person3 in his presence and by his direction. Second. The signature or mark of the testator or the sig nature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will 5. 6 Third. The Will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the Will, or have seen some other person sign the Will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses must sign the 8 To hold that, when A is in such a position that B may see what he is doing, A is in B's presence, is the largest permissible latitude of construction, 3 N. W. P. 32, 35. As to what is a sufficient acknow ledgment, see I Bom. 547, where the testator produced a paper, made the witnesses understand that it was his will, and the Court was satisfied that his signature was on the will when the witnesses attested it. Acknow ledgment before a Registrar of As surances is of course enough, 6 Cal. 17: I Cal. 150. This direction is not satisfied by the witnesses affixing their marks, 3 Bom. 382 (dissenting from Pontifex J. in 13 Ben. 392): 11 Cal. 429. And the witnesses must sign after the testator has executed, 6 Cal. 17: 5 Cal. 738: 24 W. R. 322: 3 Bom. 382. Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time1; and no particular form of attestation shall be necessary 2. tion of papers by 51. If a testator, in a Will or Codicil duly attested, refers Incorporato any other document then actually written, as expressing any part of his intentions, such document shall be considered reference. as forming a part of the Will or Codicil in which it is referred to. 1 Both witnesses therefore need not be present when the testator signs or acknowledges. Otherwise in the case of a privileged will; see sec. 53, cl. 6, infra. 2 When the testator does not himself sign, but some other person signs in his presence and by his direction, then, besides this other person, there must be two witnesses. In other words, there must be, in such cases, three persons in addition to the testator himself, 9 Cal. 229. In sec. 50, the word 'will' must be taken to include 'codicil'-otherwise The form of attestation may be: 3 'written' here would probably be construed as including 'printed,' 'engraved,' 'lithographed, etc. PART IX.1 Privileged Will. Mode of making, OF PRIVILEGED WILLS. 52. Any soldier being employed in an expedition2, or engaged in actual warfare, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a Will made as is mentioned in the fifty-third section. Such Wills are called privileged Wills. Illustrations. (a) A, the surgeon of a regiment, is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged Will. (b) A is at sea in a merchant ship, of which he is the purser. He is a mariner, and being at sea can make a privileged Will. (c) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged Will. is (d) A, a mariner of a ship in the course of a voyage, temporarily on shore while she is lying in harbour. He is, in the sense of the words used in this clause, a mariner at sea, and can make a privileged Will. (e) A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea, and cannot make a privileged Will. (ƒ) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged Will. 53. Privileged Wills may be in writing, or may be made and rules by word of mouth. The execution of them shall be governed for execut- by the following rules: ing, privileged Wills. First.-The Will may be written wholly by the testator, with his own hand. In such case it need not be signed nor attested. 1 This Part does not apply to Hindús etc., Act XXI of 1870, supra, P. 313. 2 But the informal will of a soldier in command of the Mysore division of the army, who died while on a tour of inspection of the troops, was held not to be privileged, In the goods of Hill, 1 Rob. 276. This would include a surgeon, purser, or engineer. Second.-It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested. Third. If the instrument purporting to be a Will is written wholly or in part by another person, and is not signed by the testator, it shall be considered to be his Will, if it be shown that it was written by the testator's directions, or that he recognised it as his Will. If it appear on the face of the instrument that the execution of it in the manner intended by him was not completed, the instrument shall not by reason of that circumstance be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument. Fourth.-If the soldier or mariner shall have written instructions for the preparation of his Will, but shall have died before it could be prepared, and executed, such instructions shall be considered to constitute his Will. Fifth.-If the soldier or mariner shall in the presence of two witnesses have given verbal instructions for the preparation of his Will, and they shall have been reduced into writing in his lifetime, but he shall have died before the instrument could be prepared and executed, such instructions shall be considered to constitute his Will, although they may not have been reduced into writing in his presence, nor read over to him. Sixth. Such soldier or mariner as aforesaid may make a Will by word of mouth by declaring his intentions before two witnesses present at the same time. Seventh.-A Will made by word of mouth shall be null at the expiration of one month after the testator shall have ceased to be entitled to make a privileged Will1. In In re Godby, 1 Hyde, 196, Morgan J. held that a military testament, valid in its inception, was deprived of its privileges by the lapse of five years. See in England In the Goods of Leese, 17 Jur. 216. As to wills of seamen in the Royal Navy, see 28 & 29 Vic. c. 72; and as to wills of merchant seamen, 17 & 18 Vic. c. 104, s. 200. Effect of gift to attesting witness. Witness not dis qualified by PART X. OF THE ATTESTATION, REVOCATION, ALTERATION AND REVIVAL OF WILLS. 54. A Will shall not be considered as insufficiently attested by reason of any benefit thereby given, either by way of bequest or by way of appointment, to any person attesting it, or to his or her wife or husband: but the bequest or appointment shall be void so far as concerns the person so attesting3, or the wife or husband of such person 3, or any person claiming under either of them. Explanation.-A legatee under a Will does not lose his legacy by attesting a Codicil which confirms the Will'. 55. No person, by reason of interest in or of his being an executor of a Will, is disqualified as a witness to prove the interest or execution of the Will or to prove the validity or invalidity thereof 5. by being executor. Revocation of Will by testator's marriage. 56. Every Will shall be revoked by the marriage of the maker 6, except a Will made in exercise of a power of appointment, when the property over which the power of appointment 1 This indicates that the bequest is given by the same testamentary instrument which is attested, 3 Drew. 209. 2 even though his attestation was not required to validate the will, 4 Mad. 244; as where there are more witnesses than the necessary two. 3 But where A made a bequest to B, and one of the attesting witnesses was B's wife, and then A made a codicil attested by other witnesses and confirming his will, the bequest to B was held valid, L. R. 13 Eq. Ca. 381, the codicil having the effect of republishing and incorporating the will. A residuary legatee of a share of a residue does not lose it by attesting a codicil, which, by revoking legacies, increases the residuary share, Gurney v. Gurney, 3 Drew. 208. This section does not apply to Hindús etc., Act XXI of 1870. The legatee therefore of a testator to whom that Act applies does not lose his legacy by attesting the will, and collusion is encouraged by the pros pect of benefit. This section applies to the wills of Hindús etc., Act XXI of 1870. The will of a Jew, inhabitant of Calcutta, made after his first marriage, but previously to a second marriage in the lifetime of his first wife, was held by Phear J. to be revoked under this section, 1 Cal. 148. But, as the will was made in 1856, this section did not apply: see infra, sec. 331. |