APPENDIX.

THE WILLS ACT, 1837 (a).

[7 WILL. 4 & 1 VICT. CAP. 26.]

7 Will. 4 &

1 Vict. c. 26.

THE words and expressions hereinafter mentioned, which in their Interpretaordinary signification have a more confined or a different meaning, tion. 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, "Will." 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 12 Car. 2, Charles the Second, intituled an Act for taking away the Court of c. 24. wards and liveries, and tenures in capite and by knight's 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 14 & 15 Car. 2 Second, intituled an Act for taking away the Court of wards and (I.). liveries, and tenures in capite and by knight's service, and to any other testamentary disposition; and the words "real estate" shall "Real extend to manors, advowsons, messuages, lands, tithes, rents and estate." 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 "Personal and other chattels real, and also to moneys, shares of government and estate." 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 Number. singular number only shall extend and be applied to several persons

(a) This is the title given to the Act by the Short Titles Act, 1896 (59 & 60 Vict. c. 14).

7 Will. 4 & or things as well as one person or thing; and every word importing 1 Vict. c. 26. the masculine gender only shall extend and be applied to a female as well as a male.

Gender.

All property may be disposed of by will.

II. [This section repealed the previous statutes, which were:

32 Hen. 8, c. 1;

34 & 35 Hen. 8, c. 5;

10 Car. 1, sess. 2, c. 2 (I.);

29 Car. 2, c. 3, ss. 5, 6, 12, 19-22;

7 Will. 3, c. 12 (I.);

4 & 5 Anne, c. 16, s. 14;

6 Anne, c. 10 (I.);

14 Geo. 3, c. 20, s. 9;

25 Geo. 2, c. 6 (except as to colonies);

25 Geo. 2, c. 11 (I.);

55 Geo. 3, c. 192.

It was repealed by the Statute Law Revision Act, 1874.]

III. It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter 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, or 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 that 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

7 Will. 4 &

1 Vict. c. 26.

payable by

whom the same respectively may become vested, and whether he may be 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. IV. Where any real estate of the nature of customary freehold or As to the tenant right, or customary or copyhold, might, by the custom of the fees and fines manor of which the same is holden, have been surrendered to the devisees of use of a will, and the testator shall not have surrendered the same to and copyhold customary the use of his will, no person entitled or claiming to be entitled estates. 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 of 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.

customary freeholds and copyholds to be entered on Rolls; and the lord to be

V. When any real estate of the nature of customary freehold or Wills of 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

the Court

entitled to the

same fine, &c.

when such estates are now devisable as he would have been

7 Will. 4 & are declared by the will of such real estate, it shall not be necessary 1 Vict. c. 26. 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.

from the heir.

Estates pur autre vie.

No will of a minor valid;

nor of a feme covert.

Every will to be in writing, and signed in the presence of two witnesses.

Appointments

by will to be

VI. 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 fee 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.

VII. No will made by any person under the age of twenty-one years shall be valid.

VIII. 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.

IX. No will shall be valid unless it shall be in writing and executed in manner hereinafter 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 (b).

X. No appointment made by will, in exercise of any power, shall executed like be valid, unless the same be executed in manner hereinbefore reother wills, quired; and every will executed in manner hereinbefore required

&c.

(b) Amended by the Wills Act, 1852 (15 & 16 Vict. c. 24). Post, p. 447.

shall, so far as respects the execution and attestation thereof, be a 7 Will. 4 & valid execution of a power of appointment by will, notwithstanding 1 Vict. c. 26. it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other

form of execution or solemnity.

XI. Any soldier being in actual military service, or any mariner Soldiers' and or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act.

mariners' wills excepted.

XII. [Repealed by 28 & 29 Vict. c. 112, s. 1.] XIII. Every will executed in manner herein before required, shall Publication be valid without any other publication thereof.

not to be requisite. Will not void

by incom

XIV. If any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, witness. such will shall not on that account be invalid.

petency of

XV. If any person shall attest the execution of any will to whom Gifts to an or to whose wife or husband any beneficial devise, legacy, estate, witness to attesting interest, gift, or appointment of or affecting any real or personal estate be void. (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void; and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.

XVI. In case by any will any real or personal estate shall be Creditor charged with any debt or debts, and any creditor, or the wife or attesting to be admitted husband of any creditor, whose debt is so charged, shall attest the a witness. execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.

XVII. No person shall, on account of his being an executor of a Executor to will, be incompetent to be admitted a witness to prove the execution be admitted of such will, or a witness to prove the validity or invalidity thereof.

a witness.

XVIII. Every will made by a man or woman shall be revoked Will to be by his or her marriage (except a will made in exercise of a power revoked by marriage. of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin under the Statute of Distributions). XIX. No will shall be revoked by any presumption of an inten- No will to be tion on the ground of an alteration in circumstances.

revoked by presumption.