Analysis of the Witness Act of 1837 - Essay Example

The Witness Beneficiary Rule in S.15 of the Wills Act 1837 Number Department Introduction The WitnessAct of 1837 is an Act of the United Kingdom Parliament which confirms and recognises the power of adults to dispose off their personal and real property, whether such an adult person is a beneficiary under a trust, by will on their death, or the outright owner. The provisions of the Act extend to all testamentary gifts or dispositions where an individual makes a disposition to his property so that it takes effect after his decease, and which is in own nature, revocable and ambulatory during his life. There are several pitfalls in the Witness Beneficiary Rule in s. 15 of the Wills Act 1837 which have prompted lawyers, paralegals, legal practitioners and academicians to observe that there is a need for amends, so as to have the pitfalls amended. One of the drawbacks in the Witness Beneficiary Rule in s. 15 of the Wills Act 1837 is the failure to capture the complexities that accompany the law of testation. Specifically, the Witness Beneficiary Rule negates a situation whereby a beneficiary of a will gets married to the main witness, 10 years after the signing of the will. This is a complex issue because the Witness Beneficiary Rule assumes that there is always a distinction between a beneficiary and a witness and this assumption fundamentally underpins and informs the legitimacy of the exaction of the will, upon the death of the testator. Instead, what is captured as a limitation, known as Gifts to an attesting witness to be void states that: if any person attests the execution of any will of any will to whom or to whose legal spouse any beneficial legacy, device, interest, estate, gift or appointment, of or affecting any real and/ or personal estate [apart from and except directions and charges for the payment of debt(s)], shall be thereby made or given such legacy, device, interest, estate, gift or appointment, shall, so far only as concerns such person or legally recognised spouse or any person claiming under such a person [a legally recognised spouse], be totally null and void, and such a person so attesting shall be admitted as a witness, to prove the execution of such will, or to demonstrate the invalidity or validity thereof, regardless such legacy, device, interest, estate, gift or appointment that has been mentioned in such will1. The provision above is therefore clearly derelict of the consideration of the circumstances that may impede the exaction of the Witness Beneficiary Rule in s. 15. To the effect of the above, solution to the complication above will be pegged on the circumstances that surround the Will signature, and the presence of other formalities under the Wills Act 1837 which may be incorrect. In this case, the solution may be simple: in the event that the beneficiary was not married to the witness when the signature was appended to the Will, there is no breach on s.15 of the Wills Act. This is because of the rule against a witness not being a spouse to the beneficiary or the beneficiary. However, the fact that this is clearly not stipulated in the Witness Beneficiary Rule in s. 15 of the Wills Act 1837 causes a lot of problems2. The Witness Beneficiary Rule in s. 15 of the Wills Act 1837 cannot have captured the recommendation [or approach stated in the paragraph immediately] above because the approach emanated from the Thorpe vs. Bestwick 1881 case. It was only during the case, Thorpe vs. Bestwick 1881 that the aforementioned loophole was detected, so that it became a case law. Thorpe vs. Bestwick 1881 also made it clear that apart from the approach, the Executors of the Estate should consult extensively, seek legal advice and opinions, to have their positions confirmed3. Closely related to the shortcoming immediately above, the Witness Beneficiary Rule in S.15 of the Wills Act 1837 also prevented a witness to a will and his spouse from receiving a legacy, device, interest, estate, gift or appointment under the will. This is to the effect that if the will provided for the witness or his/ her spouse to receive a gift, the gift will fail [without necessarily affecting the validity of the will]. In another wavelength, it is interesting that the Witness Beneficiary Rule in S.15 of the Wills Act 1837 also made the assumption that potential benefactors and other interested players cannot influence the decisions and actions of the testator. This is especially the case when the testator becomes older or more vulnerable, and thereby being more susceptible to parties who deem themselves to be or are actual potential beneficiaries. It is against this backdrop that the Victorian Law Reform Commission was asked to review and table a report on ‘whether the present requirements for witnessing wills ought to be revised to better protect older and more vulnerable will makers from undue influence by actual and potential beneficiaries.’ According to Cassidy4, the same reason above is further compounded in light of the application of the dispensing power of the Court. Since the Court may dispense away the formal requirements which may seem complicated but marginal, the Court may fail to get the fact that the very complex but marginal details are indicators of coercion or manipulation of the testator by the witnesses. This is especially the case, since, the dispensing power stipulates that even if the testator as the will-maker does not follow the formalities, the will [he has left behind] may still be admitted to probate, where the Supreme Court is satisfied or convinced that the person ‘had intended that the document be treated as his or her will’. For the very reason above, Anno5 argues that the rule does not inhibit other forms of involvement during the will-making process which provides avenues for exerting undue influence like drafting the will, taking the will-maker to a solicitor and/ or being present when the will is being drafted and/ or executed. Although widespread concerns were expressed in submissions and consultations concerning potential beneficiaries improperly prevailing upon vulnerable testators to make wills that did not capture their wishes, the support in favour of the view that amending the witnessing requirements would deal with the problem was not strong enough. The failure to address this problem would be very dire, given that the Witness Beneficiary Rule in S.15 of the Wills Act 1837 makes it mandatory that the testator must make his will in writing and sign it, in the presence of two witnesses, in order for the will to be valid. Even the signature must be appended in the presence of both or either of the witnesses. Another serious flaw of the Witness Beneficiary Rule in S.15 of the Wills Act 1837 is that it failed to distinguish between dishonest and innocent witnesses. The rule makes and conveys the assumption that all witness-beneficiary Act in a uniform manner and this is not the case always. In some cases, witnesses were unaware of the rule, while others were aware. It is against the backdrop above that even when a judge was satisfied that the will-maker or the testator knew or approved of the legacy, device, interest, estate, gift or appointment and the same was not included as a result of any undue influence by any person, then the witness was unable to receive the legacy, device, interest, estate, gift or appointment. That this pitfall existed is a matter that is well illustrated by the amendments that were made in 1977 [in Victoria, to seal this loophole]. Again, in relation to the problem above, any person perpetrating a fraud against the will-maker or the testator is likely to make steps so as to disguise any involvement in the making of the will. For this reason, such a person will be very unlikely to witness the will. The person who is making an attempt at establishing a false will may be clearly aware of the law and may ensure that they are by all means, not a witness-beneficiary6. In a separate vein, there are also scholars and legal experts such as Hannan7 who argue that the Witness Beneficiary Rule in S.15 of the Wills Act 1837 specifically disadvantages people who make a will by themselves [also known as home-made will], outside the assistance of a solicitor. To this effect, Hannan argues that this is the reason why usually, cases where an innocent witness loses a legacy, device, interest, estate, gift or appointment under a will, concerns home-made wills. Even Victoria modified the same rule in 1977 to rectify this situation. The problem in the immediate foregoing drawback is further underpinned and fueled by the fact that as is usually the case, a witness to a will may be unaware about his status as a beneficiary, since a witness needs not necessarily be aware of the contents of the will. The complication is further compounded by the fact that the Witness Beneficiary Rule in S.15 of the Wills Act 1837 does not envision a situation whereby a witness who would have been entitled to have a share of the will-maker’s estate is to receive an amount, up to the value of that [very same] share, upon the death of the testator. Recommendations and Further Discussions on the Same [Recommendations] It is also against the backdrop of the aforementioned weaknesses that the Victorian Law Commission made additional proposals, as a way of making the provisions of the drafting of a will more secure. It was recommended that one of the witnesses should be a person who is authorised to witness a statutory declaration [as a way of minimising chances of the testator being manipulated by witnesses]. In the same effect, the witness has to certify that the testator signed the will freely and in his own volition and appeared to have been compos mentis enough to act as a legal person. The same recommendations were made to the effect that one of the witnesses be a medical practitioner who makes assessments of the testator’s capacity and freedom of will. This makes the need for one of the witnesses to ensure that the testator is sane enough to act legally tenable. Additionally, the witness who has taken such responsibility upon himself must be aware that he is signing a will. There are others8 who have reacted to these proposals by gainsaying them. Merrett9 is of the idea that the recommendations and amendments would undermine national consistency in areas where laws of testation are already consistent. Others also take the persuasion that the recommendations would open an increasing number of wills being found to be invalid. The crux of the matter herein is that many of will-makers’ intentions will end up not being upheld. There are others such who are of the idea that the recommendations are likely to herald an increase of the cost of making a will. The same is also underpinned by the fact that the rising cost will be a culmination of the consequent inability to craft a will outside the services or assistance of a legal practitioner or a lawyer. There are also lawyers, legal practitioners, scholars and civil rights activists such as Neville10 who are concerned that the effecting of the recommendations is likely to undermine the sacrosanct civil rights and freedom to make a will. There are also those who felt that the recommendations made on special witnessing requirements should be made applicable to will-makers over a certain age. This is because with aging comes increased susceptibility to manipulation, because of senility, senescence and a degree of natural mental retardation. However, there are those who held that such measures would be arbitrary, discriminative and ineffective in warding off undue influence from witnesses. Many were also of the persuasion that in balancing the risk of abuse with persons’ ability to make their own will easily, the purpose of the law will be defeated: the law is to facilitate will-making instead of adding additional impediments to the process. References Anno P., 1999, “Victorieae Reginae: an Act for the Amendment of the Laws with respect to Wills, 3 July 1837.” [1999], 214. Cassidy, J. 2000, “Exploring the Benefits and Pitfalls of Using Mutual Wills.” [2000], 10 BJL 1, 125. Hannan, M. A., 2010, “Third Generation Human Rights and the Good Governance.” [2010] 2 OIDA IJSD 5, 41-50. Law Reform Advisory Committee for Northern Ireland, 2005, “Attestation of Wills,” [2005] 2 DP12, 7. Law Reform Advisory Committee for Northern Ireland, 2005, “Attestation of Wills”, [2005], 4 DP 12, 7. Law Reform Committee, 1986, “Parliament of Victoria, Law Reform Committee,” [1986] 1, LRC 3, 88. Members of the Wills Sub-Committee, 1991, “Reforming the Law of Wills,” [1991] 2 RIDWB 4, 82. Merrett, I., 2010, “Where There’s a Will There’s An Intestacy: s 15 of the Wills Act.” [2010] OUP, 75. National Committee for Uniform Succession Laws, 1986, “Wills: Execution and Revocation,” [1986], 3 RN 47, 87. Neville, C., 1995, “Reform of the Law of Wills” [1995] 25 UWALR 255, 262. Law Reform Committee, 1986, “Wills: Execution and Revocation,” [1986] 1 NSWLR, 47, 88. Read More