| Wills Act |
| (CHAPTER 352) |
(Original Enactment: Indian Act XXV of 1838)
| REVISED EDITION 1985 |
| (30th March 1987) |
| An Act to declare the law relating to wills. |
| [8th October 1838] |
| Short title |
| 1. This Act may be cited as the Wills Act. |
| Interpretation |
2. In this Act, unless there is something repugnant in the subject or context —
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| Property disposable by will |
| 3. Except as hereinafter provided, every person may devise, bequeath or dispose of by his will, executed in the 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 the power hereby given shall extend to all estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be a corporeal or an incorporeal hereditament, and whether the same shall be freehold or of any other tenure, 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 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 estates 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. |
| Will of infant invalid |
| 4. No will made by any person under the age of 21 years shall be valid. |
| Mode of execution |
| Execution of appointment by will |
6.—(1) No appointment made by will, in exercise of any power, shall be valid, unless the will is executed in the manner required by this Act.
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| Publication of will not necessary |
| 7. Every will executed in the manner required by this Act shall be valid without any other publication thereof. [8 |
| Will not to be invalidated by reason of incompetency of attesting witness |
| 8. If any person who attests 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, the will shall not on that account be invalid. [9 |
| Gifts to an attesting witness or to wife or husband of attesting witness to be void |
| 9. If any person attests the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift or appointment of or affecting any real or personal estate, other than and except charges and directions for the payment of any debt or debts, shall be thereby given or made, the devise, legacy, estate, interest, gift or appointment shall, so far only as concerns the person attesting the execution of the will, or the wife or husband of that person, or any person claiming under that person or wife or husband, be utterly null and void, and the person so attesting shall be admitted as a witness to prove the execution or to prove the validity or invalidity thereof, notwithstanding the devise, legacy, interest, gift or appointment mentioned in the will. [10 |
| Creditor attesting a will charging estate with debts shall be admitted a witness |
| 10. In case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of the will, the creditor notwithstanding the charge shall be admitted a witness to prove the execution of the will, or to prove the validity or invalidity thereof. [11 |
| Executor not incompetent to be a witness |
| 11. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of the will or a witness to prove the validity or invalidity thereof. [12 |
| Will to be revoked by marriage except in certain cases |
12. Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled under the Intestate Succession Act [Cap. 146]:
[13 |
| No will to be revoked by presumption from altered circumstances |
| 13. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. [14 |
| Revocation of will or codicil |
| 14. No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in the manner by this Act required, or by some writing declaring an intention to revoke it, and executed in the manner in which a will is by this Act required to be executed, or by the burning, tearing, or otherwise destroying the will by the testator, or by some person in his presence and by his direction, with the intention of revoking it. [15 |
| Effect of obliteration, interlineation or alteration |
| 15. No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless the alteration shall be executed in the like manner as by this Act is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or some other part of the will. [16 |
| Revival of revoked will |
| 16. No will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in the manner required by this Act and showing an intention to revive the will or codicil; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, the revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary be shown. [17 |
| Subsequent conveyance or other acts not to prevent operation of will |
| 17. No conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which the will shall be revoked as aforesaid, shall prevent the operation of the will with respect to the estate or interest in the real or personal estate as the testator shall have power to dispose of by will at the time of his death. [18 |
| Wills shall be construed to speak from death of testator |
| 18. Every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. [19 |
| Residuary devises shall include estates comprised in lapsed and void devises |
| 19. Unless a contrary intention appears by the will, such real estate and interest therein as is comprised or intended to be comprised in any devise in the will contained, which fails or is void by reason of the death of the devisee in the lifetime of the testator or by reason of the devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in the will. [20 |
| General gift of realty and of personality shall include property over which testator has general power of appointment |
| 20. A general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which that description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of that power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal estate described in a general manner, shall be construed to include any personal estate, or any personal estate to which that description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of that power, unless a contrary intention shall appear by the will. [21 |
| Devise without words of limitation |
| 21. Where any real estate shall be devised to any person without any words of limitation, the devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in the real estate unless a contrary intention shall appear by the will. [22 |
| Construction of words importing want or failure of issue |
22. In any devise or bequest of real or personal estate the words “die without issue” or “die without leaving issue”, or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of that person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will:
[23 |
| Devise of real estate to trustee or executor |
| 23. Where any real estate shall be devised to any trustee or executor, the devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in the real estate, unless, a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. [24 |
| Devise of real estate to trustee without limitation |
| 24. Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by the trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or the beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of that person, the devise shall be construed to vest in the trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in the real estate, and not an estate determinable when the purposes of the trust shall be satisfied. [25 |
| Gifts to children or other issue who leave issue living at testator’s death shall not lapse |
| 25. Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of that person shall die in the lifetime of the testator leaving issue, and any such issue of that person shall be living at the time of the death of the testator, that devise or bequest shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. [27*
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| Saving as to wills of soldiers and mariners |
26.—(1) Notwithstanding anything in this Act any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act and may do so even though under the age of 21 years.
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