Wills Act 1837
Encyclopedia
The Wills Act 1837 is an Act
of the Parliament of the United Kingdom
that confirms the power of every adult to dispose of their real
and personal property
, whether they are the outright owner or a beneficiary under a trust
, by will
on their death
(s.3). The act extends to all testamentary dispositions or gifts
, where "a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." , much of it remains in force in England and Wales
.
and equity, various customary rules had long existed for disposing of personal property by will. However, the power to gift real property by will had been first granted by the Statute of Wills
(1540). Various rules grew up around the formalities necessary to create a valid will and the Statute of Frauds
(1677) created the requirement that a will of real property must be in writing
. By the early nineteenth century, the rules had become complex, with different rules for formalising wills of real and personal property. The 4th report of the Commissioners for Inquiring into the Law of Real Property
recommended a simplified and unified scheme. As the Commissioners observed "Any scrap of paper, or memorandum in ink or in pencil, mentioning an intended disposition of his property, is admitted as a will and will be valid, although written by another person, and not read over to the testator, or even seen by him, if proved to be made in his lifetime according to his instructions." A bill
was introduced by the Attorney General
Sir John Campbell
, one of the Commissioners, in 1834 though it was much delayed for want of parliamentary time. The bill was introduced in the House of Lords
by Lord Langdale
.
Though the requirement that a will be in writing stems from an attempt to frustrate fraud
, an apparent exception to the requirements for the formal execution of the Act under section 9 is a secret trust
.
on active service or a mariner at sea (s.11). These provisions were clarified by the Wills (Soldiers and Sailors) Act 1918 (see below).
There is no requirement to publish a will (s.13). If any of the witnesses was, or subsequently becomes, incapable of proving the will, that alone will not make it invalid (s.14). Alterations must be executed in the same manner as a will (s.21).
and annulment
have the same effect as the death of a spouse.
A will or codicil
cannot be revoked by any presumption of the intention of the testator or on the grounds of any alteration in his circumstances (s.19). A will can only be revoked by (s.20):
A revoked will or codicil cannot be revived other than by its re-execution or by a formally executed codicil (s.22).
. However, such a witness can still prove the will (s.15). There is no bar on a creditor
of the testator or the executor
of the will being a witness (ss.16-17).
(s.27).
until partition
. It consequently became the law of the Irish Free State
on 6 December 1922, and then of its successor states. When the autonomous region of Northern Ireland
seceded from the Irish Free State and rejoined the United Kingdom
on 7 December 1922, the Act became the law of Northern Ireland. However, all save sections 1 and 11 were repealed and re-enacted, with amendments, in Northern Ireland in 1995 following the recommendations of the Land Law Working Group.
and various manorial rights were preserved over the land devised. Where land was held subject to a Lord of the Manor
, for example under a copyhold
, the Act required that the will was recorded in the Court Roll
of the manor
and that various fees and duties were paid. These provisions became irrelevant following the demise of the manorial system with the Law of Property Act 1925
.
Section 8 maintained the earlier incapacity of a feme covert to make a will.
(s.5). This Act is in force in Scotland
, but this may be to no effect as it acts only by reference to the Wills Act 1837, which is not in effect there but is in effect, in modified form, in Northern Ireland
.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that confirms the power of every adult to dispose of their real
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
and personal property
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
, whether they are the outright owner or a beneficiary under a trust
Trust law
In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another...
, by will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
on their death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
(s.3). The act extends to all testamentary dispositions or gifts
Gift (law)
A gift, in the law of property, is the voluntary transfer of property from one person to another without full valuable consideration...
, where "a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." , much of it remains in force in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
.
Background
Under ecclesiastical law, common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and equity, various customary rules had long existed for disposing of personal property by will. However, the power to gift real property by will had been first granted by the Statute of Wills
Statute of Wills
The Statute of Wills was an Act of the Parliament of England. It made it possible, for the first time in English history, for landholders to determine who would inherit their land upon their death by permitting bequest by will...
(1540). Various rules grew up around the formalities necessary to create a valid will and the Statute of Frauds
Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
(1677) created the requirement that a will of real property must be in writing
Writing
Writing is the representation of language in a textual medium through the use of a set of signs or symbols . It is distinguished from illustration, such as cave drawing and painting, and non-symbolic preservation of language via non-textual media, such as magnetic tape audio.Writing most likely...
. By the early nineteenth century, the rules had become complex, with different rules for formalising wills of real and personal property. The 4th report of the Commissioners for Inquiring into the Law of Real Property
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
recommended a simplified and unified scheme. As the Commissioners observed "Any scrap of paper, or memorandum in ink or in pencil, mentioning an intended disposition of his property, is admitted as a will and will be valid, although written by another person, and not read over to the testator, or even seen by him, if proved to be made in his lifetime according to his instructions." A bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
was introduced by the Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
Sir John Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
, one of the Commissioners, in 1834 though it was much delayed for want of parliamentary time. The bill was introduced in the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
by Lord Langdale
Henry Bickersteth, 1st Baron Langdale
Henry Bickersteth, 1st Baron Langdale KC, PC was an English law reformer and Master of the Rolls.He was born on 18 June 1783 at Kirkby Lonsdale, three years before his brother Edward Bickersteth...
.
Though the requirement that a will be in writing stems from an attempt to frustrate fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
, an apparent exception to the requirements for the formal execution of the Act under section 9 is a secret trust
Secret trusts in English law
Secret trusts in English law are a class of trust defined as an unofficial arrangement between a testator and a trustee, made to come into force after death, that aims to benefit a person without having been written in a will. Normally, the property would be given to the trustee in the will, and he...
.
Capacity
A minor, as of 2008 a person under the age of 18, cannot make a valid will (s.7), unless they are a member of the armed forcesArmed forces
The armed forces of a country are its government-sponsored defense, fighting forces, and organizations. They exist to further the foreign and domestic policies of their governing body, and to defend that body and the nation it represents from external aggressors. In some countries paramilitary...
on active service or a mariner at sea (s.11). These provisions were clarified by the Wills (Soldiers and Sailors) Act 1918 (see below).
Requirements of a valid will
A will is only valid if (s.9):- It is made in writingWritingWriting is the representation of language in a textual medium through the use of a set of signs or symbols . It is distinguished from illustration, such as cave drawing and painting, and non-symbolic preservation of language via non-textual media, such as magnetic tape audio.Writing most likely...
; - It is signedSignatureA signature is a handwritten depiction of someone's name, nickname, or even a simple "X" that a person writes on documents as a proof of identity and intent. The writer of a signature is a signatory. Similar to a handwritten signature, a signature work describes the work as readily identifying...
by the testatorTestatorA testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
, or at his direction and in his presence; - The testator intends that the signature give effect to the will;
- The will is made or acknowledged in the presence of two or more witnesses, present at the same time; and
- Each witness attests and signs, or acknowledges, his signature in the presence of the testator.
There is no requirement to publish a will (s.13). If any of the witnesses was, or subsequently becomes, incapable of proving the will, that alone will not make it invalid (s.14). Alterations must be executed in the same manner as a will (s.21).
Revocation of a will
Section 18 revokes the will in the event of the marriage of the testator. However, this section was amended in 1982 so that where the testator makes the will in the expectation of marriage to a particular person, the will is not revoked by such a marriage. Section 18A was added in 1982 to the effect that divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
and annulment
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
have the same effect as the death of a spouse.
A will or codicil
Codicil (will)
A codicil is a document that amends, rather than replaces, a previously executed will. Amendments made by a codicil may add or revoke small provisions , or may completely change the majority, or all, of the gifts under the will...
cannot be revoked by any presumption of the intention of the testator or on the grounds of any alteration in his circumstances (s.19). A will can only be revoked by (s.20):
- Another properly executed will or codicil;
- A document executed under the same formalities as a will, declaring an intention to revoke the will; or
- Destruction of the will by the testator, or some person in his presence, with the intention of revoking the will.
A revoked will or codicil cannot be revived other than by its re-execution or by a formally executed codicil (s.22).
Gifts to witnesses
Gifts under the will to an attesting witness, or their spouse, are null and voidVoid (law)
In law, void means of no legal effect. An action, document or transaction which is void is of no legal effect whatsoever: an absolute nullity - the law treats it as if it had never existed or happened....
. However, such a witness can still prove the will (s.15). There is no bar on a creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
of the testator or the executor
Executor
An executor, in the broadest sense, is one who carries something out .-Overview:...
of the will being a witness (ss.16-17).
Gifts to children
Where the testator makes a gift to one of his children or a remoter descendant, and that child dies before the testator, the gift will not lapse so long as the deceased descendant himself leaves children surviving at the death of the testator. The surviving descendants receive the gift (s.33). The rule also applies to illegitimate children (s.33(4)(a)) and a person conceived before the death of the testator is deemed to have been living at the testator's death (s.33(4)(b)).Interpretation
The will is interpreted in respect of the testator's property immediately before his death (s.24). Where the testator makes a gift of all his real property, it is deemed to include property over which he has a power of appointmentPower of appointment
A power of appointment is a term most frequently used in the law of wills to describe the ability of the testator to select a person who will be given the authority to dispose of certain property under the will. Although any person can exercise this power at any time during their life, its use is...
(s.27).
Ireland and Northern Ireland
The Act was in force in IrelandIreland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
until partition
Partition of Ireland
The partition of Ireland was the division of the island of Ireland into two distinct territories, now Northern Ireland and the Republic of Ireland . Partition occurred when the British Parliament passed the Government of Ireland Act 1920...
. It consequently became the law of the Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
on 6 December 1922, and then of its successor states. When the autonomous region of Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
seceded from the Irish Free State and rejoined the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
on 7 December 1922, the Act became the law of Northern Ireland. However, all save sections 1 and 11 were repealed and re-enacted, with amendments, in Northern Ireland in 1995 following the recommendations of the Land Law Working Group.
Provisions of the Act, since repealed
Sections 4 to 6 addressed various technicalities of land law since rendered obsolete. The Act did not extend to estates pur autre viePur autre vie
The French translation of pur autre vie is "for another's life." It is also spelled "pour autre vie" in modern French.- Property Law :Pur autre vie is a phrase used to describe the duration of a property interest in property law in the United States and some Canadian provinces...
and various manorial rights were preserved over the land devised. Where land was held subject to a Lord of the Manor
Lord of the Manor
The Lordship of a Manor is recognised today in England and Wales as a form of property and one of three elements of a manor that may exist separately or be combined and may be held in moieties...
, for example under a copyhold
Copyhold
At its origin in medieval England, copyhold tenure was tenure of land according to the custom of the manor, the "title deeds" being a copy of the record of the manorial court....
, the Act required that the will was recorded in the Court Roll
Court roll
The Manorial Roll or Court Roll is the roll or record kept in connection with a manorial court, in particular containing entries relating to the rents and holdings, deaths, alienations, and successions of the customary tenants or copyholders. A copy of the court roll constitutes the tenant's title...
of the manor
Manorialism
Manorialism, an essential element of feudal society, was the organizing principle of rural economy that originated in the villa system of the Late Roman Empire, was widely practiced in medieval western and parts of central Europe, and was slowly replaced by the advent of a money-based market...
and that various fees and duties were paid. These provisions became irrelevant following the demise of the manorial system with the Law of Property Act 1925
Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
.
Section 8 maintained the earlier incapacity of a feme covert to make a will.
Wills (Soldiers and Sailors) Act 1918
The Wills (Soldiers and Sailors) Act 1918 clarifies and extends the Wills Act 1837. Section 1 makes if clear that a soldier on active service or sailor at sea, can make, and always could have made, a valid will, even though under 18 years of age. Section 2 extends the provision to sailors not at sea but who are employed in similar service to a soldier on active service. "Soldier" include a member of the Air ForceRoyal Air Force
The Royal Air Force is the aerial warfare service branch of the British Armed Forces. Formed on 1 April 1918, it is the oldest independent air force in the world...
(s.5). This Act is in force in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, but this may be to no effect as it acts only by reference to the Wills Act 1837, which is not in effect there but is in effect, in modified form, in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
.