Laws of the united kingdom




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Wills Act 1837

LAWS OF THE UNITED KINGDOM

THE WILLS ACT, 1837.

(7 Will. 4 & I Vict. c. 26.)


An Act for the amendment of the Laws with respect to Wills [1073]

[3rd July, 1837.]



The short title was given to this Act by the Short Titles Act, 1896 (c. 14).
As to the effect on this Act of the Law of Property Act, 1922 (c. 16), see the Law of Property Act, 1924 (c. 5), s.9, Sched. 9 (3), Vol. 15, title REAL PROPERTY pp. 169, 174.


[1.] Meaning of certain words in this Act.-The words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, be interpreted as follows; (that is to say,) the word "will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an Act passed in the twelfth year of the reign of King Charles the Second, intituled "An Act for taking away the court of wards and liveries and tenures in capite and by knights service, and purveyance, and for settling a revenue upon his Majesty in lieu thereof," or by virtue of an Act passed in the Parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled, "An Act for taking away the court of ward and liveries, and tenures in capite and by knight's service," and to any other testamentary disposition; and the words "real estate" shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words "personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. [1074]

Appointment by will in exercise of a power. As to what form of document amounts to an appointment by will in exercise of a power, see Re Barnett, Dawes v. Ixer, [1908] 1 Ch. 402. See also s.27, and notes, p.446, post.
"Personal estate." - See Re Grassi , Stubberfield v. Grassi, [1905] 1 Ch. 584, 590.
As to the extent to which a general devise of personal estate will operate as an exercise of a power of appointment, see Chandler v. Pocock (1880), 15 Ch. D. 491; affirmed on appeal, 16 Ch. D. 648; and s.27, and notes, p. 446, post.
For Stat. (1660) 12 Car. 2, c. 24 (abolition of old tenures), see Vol. 15, title REAL PROPERTY, p. 58.

[S. 2 rep. 37 & 38 Vict. c. 35 (S.L.R.). By this section the following enactments were repealed, except as to any wills or estates pur autre vie to which this Act does not extend: 32 Hen. 8, c. I ; 34 & 35 Hen. 8 c. 5; 10 Car. 1, sess. 2, c. 2-(Irish Act); 29 Car. 2, c. 3, ss. 5, 6, 12, 18 to 21; 7 Will. 3, c. 12 (Irish Act), ss. 3, 9, 15 to 18; 4 & 5 Ann. c. 3, s. 14; 6 Ann. c. 10 (Irish Act), s. 14; 14 Geo. 2, c. 20, s. 9; 25 Geo. 2, c. 6 (except as to his Majesty's colonies and plantations in America) 25 Geo. 2, c. 11 (Irish Act); 55 Geo. 3, c. 192.]




3. All property may be disposed of by will.-It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner herein-after required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, and disposed of, would devolve upon the heir at law or customary heir of him, or, if he became entitled by descent, of his ancestor,. or upon his executor or .administrator; and the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this Act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this Act, if this Act had not been made; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively become vested, and whether he may entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. [1075]

"Every person" These words do not extend to persons under legal disability by reason either of infirmity of mind or want of age.
A person who is lunatic or, non compos mentis cannot during the continuance of his unsoundness of mind make a will, but a will made by him during a lucid interval will be valid (White v. Driver (1809), 1 Phillim. 84.
As to testamentary capacity in relation to lunatics generally, see Halsbury's Laws of England, Vol. 28,p.532, and the English and Empire Digest, Vol. 33, pp. 141 et seq.
As to want of age, see s. 7, p. 440, post.
Aliens formerly had no power to acquire and hold real estate in England, and consequently no power to make a will of such property; but now real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural born British subject (see British Nationality and Status of Aliens Act, 1914 (c. 17), s. 17, Vol. 1, title ALIENS, p. 194; and see Halsbury's Laws of England, Vol. 1, p. 307, and Vol. 28, p. 535),
"Will"- S. 1 provides that in the Act the word "will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power (see Re Barnett, Dawes v. Ixer, [1918] 1 Ch. 402). Formerly a distinction was made in the use of the terms "will" and "testament." The distinction is said to be that "will", is a general term, and that where lands or tenements are devised, though no executor is appointed, the instrument is properly called a will, and. that where it concerns chattels only and appoints an executor, it is called a testament (see Halsbury's Laws of England, Vol. 28, p. 505, n.).The distinction, however, was never rigidly adhered to.
"All real estate." There is a devisable interest in land held under a possessory title (see Asher v. Whitlock (1865), L.R. 1 Q.B. 1, and Calder v. Alexander (1900), 16 T.L.R. 294).
"All personal estate, etc." - This section does not make any kind of personalty bequeathable which was not bequeathable before, but only, as regards that kind of property, regulates the form of executing wills. It does not empower a testator to bequeath a chose in action so as to pass the right to sue. For instance, it does not enable a testator to bequeath a promissory note made to him so as to pass the right to sue in respect of it to the legatee. In such a case the right to sue would be in the executor (see Bishop v. Curtis (1852), 18 Q.B. 878).
"Customary freehold, etc."-See Preliminary Note, p. 433, ante.
"Contingent, executory or other future interests in any real or personal estate." -A spes successionis, or mere expectation or hope of succeeding to property is not within these words ( see Re Parsons, Stockley v. Parsons (1890), 45 Ch.D. 51, and Re Mudge, [1914] 1 Ch. 115).
For the power of the father or mother to appoint testamentary guardians, see now the Guardianship of Infants Act, 1925 (c. 45), s.5, Vol. 9, title INFANTS AND CHILDREN, p. 822; and in the case of those privileged under s.11 of this Act, p. 442, post, see the Wills (Soldiers and Sailors) Act, 1918 (c. 58), s.4, p. 456, post.
Formerly there was a doubt whether the Act extended to the case of a testator dying without heirs and whether in such a case there would not be an escheat, unless the will were executed and attested in accordance with the old law. That doubt, however, has been set at rest by s. 178 of the Law of Property Act, 1925 (c. 20), Vol. 15, title REAL PROPERTY p. 359, which provides that this section shall authorise and be deemed always to have authorised any person to dispose of real property or chattels real by will, notwithstanding that by reason of illegitimacy or otherwise he did not leave an heir or next-of-kin him surviving.


4. Fees and fines payable by devisees of customary and copyhold estates.-Provided always that where any real estate of the nature of customary freehold or tenant right or customary or copyhold, might, by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator:

Provided also, that where the testator was entitled to have been admitted to such real estate, and might, if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. [1076]

See s. 85 of the Copyhold Act, 1894 (c. 46), Vol. 3, title COPYHOLDS, p. 626.
As from January 1, 1926, copyhold and customary tenures were abolished, see the Law of Property Act, 1922 (c. 16), s.128, and notes, ibid. p. 633.


5. Wills or extracts of wills of customary freeholds and copyholds to be entered on the court rolls; and the lord to be entitled to the fine. When any real estate of the nature of. customary freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the by will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will; and when any such real estate could not have been disposed of by will if this Act had not been made, the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same remedy for recovering and enforcing. such fine, heriot, dues, duties, and services, as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent. [1077]

See note to s.4, ante.




6. Devolution of estates pur autre vie not disposed of by will.- If no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in see simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.[1078]

The only legal estates now capable of subsisting in land being an estate in fee simple absolute or a term of years absolute, estates pur autre vie can now only subsist in the equitable interest in land, legal life estates being abolished (Law of Property Act, 1925 (c.20), s.1(1), (2), (3), Vol. 15, title REAL PROPERTY, p.177).

As to special occupancy, see s.1(1) of the Administration of Estates Act, 1925 (c.23), Vol. 8, title EXECUTORS AND ADMINISTRATORS, p.306, by virtue of which real estate to which a deceased person is entitled for an interest not ceasing on his death devolves from time to time on the personal representative of the deceased, in like manner as before the commencement of that Act chattels real devolved from time to time on the personal representative of a deceased person.


7. No will of a person under age valid.-No will made by any person under the age of twenty-one years shall be valid. [1079]

As to a will by a soldier or sailor though under twenty-one, see s.11 of this Act, and the Wills (Soldiers and Sailors) Act, 1918 (c.58), ss. 1, 3(2), p. 455, post.


S. 24, p. 445 post, provides that with reference to the real estate and personal estate comprised in a will shall speak and take effect as if it had been executed immediately before the death of the testator, but this provision does not enlarge the testator's capacity to make a will, and a will made by an infant does not become valid by reason of his attaining the age of twenty-one years before his death.


8. Will of a femme covert. - Provided also, that no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of this Act. [1080]

In early times a married woman was incapable of a will. Her will of land was declared void by statute (Stat. (1542-3) 34 & 35, Hen. 8, c. 5 (now repealed)).Her will of personalty was equally invalid, not merely because marriage was a gift of her personalty to her husband, but because in the eye of the law the wife had no existence separate from that of her husband, and no separate contracting or disposing powers. In course of time, however, the rule was modified, and at the time of the passing of this Act, a married woman had some, if also restricted, testamentary powers. But since 1837 a married woman's capacity to make a will has been very greatly increased, in consequence of statutory enlargement of the subjects of separate estate, and of the provisions of, s.3 of the Married Women's Property, Act, 1893 (c. 63), Vol. 9, title HUSBAND and WIFE p. 385, which extended the operation of s.24 of this Act, p. 445, post, to the wills of married women made during coverture.


By the Married Women's Property Act, 1882 (c. 75), Vol. 9 title HUSBAND AND WIFE, p. 374, it was provided: (s.1) that a married woman should, in accordance with the provisions of that Act, be capable of disposing by will of any real or personal property as her separate property in the same manner as if she were a feme sole; and (s.2) that every woman who married after the commencement of that Act (January 1, 1883) should be entitled to have and to hold as her separate property and to dispose of in manner aforesaid all real and personal property which should belong to her at the time of marriage, or should be acquired by or devolve upon her after marriage. And by s.37 of the Law of Property Act, 1925 (c. 20), Vol. 15, title REAL PROPERTY p. 214, it was provided that a husband and wife are for all purposes of acquisition of any interest in property under a disposition coming into operation after the commencement of that Act to be treated as two persons.
The Married Women's Property Act, 1893 (c. 63), s.3, Vol. 9, title HUSBAND AND WIFE, p. 385, provided that s.24 of this Act, p. 445, post, should apply to the will of a married woman made during coverture, whether she is or is not possessed of or entitled to any separate property at the time of making it, and such will should not require to be re-executed or republished after the death of her husband.
By the Supreme Court of Judicature (Consolidation) Act, 1925 (c. 49), s.194, Vol. 9, title HUSBAND AND WIFE p. 402, a wife who has obtained a decree of judicial separation is in. the position of a feme sole in respect of property which she may acquire, and similar provisions are made in respect of a wife who has obtained a protection order under the Matrimonial Causes Acts, 1857 (c. 85), s.21, and 1864 (c. 44), s.1, ibid. pp. 387, 390.
Although none of the Acts above referred to confers in terms on married women any general power of testamentary disposition having regard to the great enlargement of the subject of separate estate effected by the Married Women's Property Acts and the extension of s.24 hereof, p.445, post, to the wills of married women made during coverture, a married woman, so far as mere capacity to make a will is concerned, is practically in the same position as if she were single, and she can make a will which will be effectual in the event of her dying in the lifetime of her husband to pass a separate estate, and in the event of surviving her husband, to pass all property of or to which at the time of her death she may be seised, possessed, or entitled, other than property in which she has a mere life interest or a share in joint tenancy, and can by such will exercise any power of disposition by will which may be vested in her.
See further, Halsbury's Laws of England, Vol. 28, p.534 and the English and Empire Digest, Vol. 27,p.134.


9. Every will shall be in writing, and signed or acknowledged by the testator in the presence of two witnesses at one time, who shall attest the will. - No will shall be valid unless it shall be in writing, and executed in manner herein-after mentioned; (that is to say) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. [1081]

For exception from formalities in the wills of soldiers and sailors, see notes to s.11, p. 442, post.


"In writing."; As to whether a bequest "for the purposes indicated," the purposes being committed to paper by one of the proposed trustees in a separate memorandum, was a violation of the rule that the will must be in writing, see Blackwell v. Blackwell (1929), 145 T.L.R. 208.
As to what documents may form a will, see the English and Empire Digest, Vol. 44, pp. 227-248.
"At the foot or end thereof."-Those words were explained and their meaning extended by the Wills Act Amendment Act, 1852 (c. 24), s.1, p. 449, post. A will is sufficiently signed if the signature be placed in such a position as will fall within the terms of the amending Act. It is preferable nevertheless that it should be signed at the foot or end thereof, as it is then seen that it is only intended as a signature.
The testator may sign by placing a mark instead of actually writing his name (See In the Goods of Bryce (1839), 2 Curt. 325); and signature by mark is sufficient whether the testator is able to write or not (In the Goods of Glover (1847), 5 Notes of Cases 553, per Cur.). The stamped name of the testator is sufficient, whether the stamp be applied by the testator or by some other person by his direction and in his presence (see Jenkins v. Gaisford and Thring (1863), 3 Sw. & Tr. 93).
It has been held that when another person signs for the testator he may sign his own name instead of the testator's (see In the Goods of Clark (1839), 2 Curt. 329). It would, however, be safer not to rely on this doctrine.
The signature must be made or acknowledged in the presence of the witnesses simultaneously and not at different times (see Brown v. Skirrow, [1902] P. 3).

Acknowledgment by gestures in the joint presence of the witnesses is sufficient (see In the Goods of Martha Davies (1850), 2 Rob. Eccl. 337). To constitute a sufficient acknowledgment the witnesses must at the time of acknowledgment see, or have the opportunity of seeing the signature, and it should be explained to them that the document they are asked to sign is a testamentary instrument (see Pearson v. Pearson (1871), L.R. 2 P. & D. 451). On signature and acknowledgment generally, see the English and Empire Digest, Vol. 44, pp. 249-266.


An attesting witness may sign by mark (see In the Goods of Ashmore (1843), 3 Curt. 756) ; and the hand of an attesting witness may be guided by the hand of the other witness or of a third person (see Harrison v. Elvin (1842), 3 Q.B. 117). A witness cannot sign in the name of another person (see In the Goods of Leverington (1886), 11 P. D. 80). One attesting witness cannot sign for another (see In the Goods of White (1843), 2 Notes of Cases, 401) nor can a third person sign for a witness (see In the Goods of Cope (1850), 2 Rob. Eccl. 335). Passing a dry pen over a written signature is not sufficient (see Playne v. Scriven (1849), 1 Rob. Eccl. 772). Though no form of attestation is necessary, it is safer and more convenient that such a clause should be added to every will. It is desirable that the signatures of the witnesses should appear together and near the signature of the testator. A codicil must be executed in the same way as a will; see definition of "will" in s. 1, p. 436, ante.
On attestation generally, see the English and Empire Digest, Vol. 44, pp. 266-274.

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