Worksheet 2 Tutorials

1. Joseph Perez wrote his will on one side of a sheet of paper ending with the words ‘signed
by the above-named testator as his will’.

He then wrote his name at the head of the sheet. He then put the will in an envelope on
which he wrote “The will of Joseph Perez”. He next called in Anasha and Charita,
pointed to the envelope and said, “This is my will and I want you to witness it”. At
that moment the telephone in the room rang and Joseph answered it, standing with his
back to Anasha and Charita while they wrote their names on the envelope. Joseph died a
month ago.

Advise as to the validity of the will.

Issues
1. Whether the phrase ‘signed by the above-named testator as his will’ and writing his name
at the head of the sheet constitutes as the testator’s signature and is that signature valid
2. Whether writing ‘the will of Jospeh Perez on the envelope constitute as signing on the
will or give effect to the will
3. Whether the witnesses signing and attesting the testator’s signature on the envelope was
valid
4. Whether the testator not looking at the witnesses signing the will invalidates their
signature.
Comments
The testator must physically see or have the opportunity to see
Had the testator turn around, he could have seen
Witnesses looking at the testator sign is more stringent than the testator look at the witnesses sign

Introduction
This requires an intensive discussion on the formation of a will with specific interest on what
constitutes as the signature of a testator and signing and attestation by witness with reference to
the mental and physical presence requirement of the testator. Sir JP Wilde Lemage v Goodban
1865 13 LT 508; (1865) defined a will as "The will of a man is the aggregate of his testamentary
intentions, so far as they are manifested in writing, duly executed according to statute..." For a
will to be valid (save in the case of privileged wills) so that it can be admitted to probate, certain
requirements must be met. A will must be made in proper form by a person of sufficient age (age
of majority), and in compliance with prescribed formalities (formal requirements pursuant to
sections 4 and 5 of the Wills Act Cap 12:02 and the necessary mental element must be present
(animus testandi: testamentary capacity). Failure to comply with these formalities stated in
section 4 results in the will not being admitted to probate. The purpose of formalities is to ensure
that the will is truly the one the testator intended to make, that is not a forgery, or the result of
undue influence, or made in the heat of the moment.
Pursuant to section 4 no will shall be valid unless: it is in writing; and signed at the foot or end
thereof; by the testator, or by some other person in his presence and by his direction; and it
appears that the testator intended by his signature to give effect to the will (Section 5); and the
signature is made or acknowledged by the testator in the presence of two or more witnesses
present at the same time; and each witness must attest and sign the will in the presence of the
testator (but no form of attestation shall be necessary.
Section 4 requires that will must be signed by the testator, or by some other person, in his
presence and by his direction. The important thing is not that the deceased signed his name but
that whatever mark he does put, is intended by him to represent his signature. This is so
even if the testator could sign normally but chooses to make a mark instead. The court in
Hindmarsh v Charlton (1861) 8 HL Cas 160 at p. 167, Lord Campbell LC stated that “…
there must be either the name or some mark which is intended to represent that name”. In
Murison v. Cook and Another [1960] 1 All ER 689, a will beginning with, “I Emmie Cook…”
and ending “Your loving mother” was admitted to probate because the Judge was satisfied that
the concluding words were meant by the testatrix to represent the testatrix’s name.
The Testator must intend mark to be signature. In Weatherhill v Pearce (1995) 2 ALL ER
492, the testatrix prepared a will on a printed will form. ‘The Will Of’, she wrote her name in
capital letters, followed by the date. On the inside fold she wrote out her will in her own
handwriting, ending with the clause ‘Signed by the said testator Doris Weatherhill in the
presence of us present at the same time who at her request in her presence and in the presence of
each other have subscribed our names as witnesses’; she made no further separate signature. It
was held that where a testator wrote his name in his own handwriting in the attestation clause
and the evidence indicated that, by doing so, he had intended to give effect to the document as
his will, the handwritten name was a sufficient signature for the purposes of s 9 of the 1837 Act.
The Signature is intended ‘to give effect to the will’ Section 4 provides that the will must be
signed at its foot or end. Section 5 states, however, that the signature can be placed anywhere so
long as it is apparent on the face of the will that the testator intended to give effect by that
signature to the writing signed as his will. It ends with two prohibitions – a signature can never
operate to give effect to any part of the will which is underneath or which follows the
signature; or which was inserted later in time after the signature was made. This section has
been interpreted in the cases before the courts to mean that the signature should be deemed valid
if placed at or after, or following, or under, or beside or opposite to, the end of the will so that it
is apparent on the face of the will that the testator intended to give effect by that signature
to the writing signed as his will. In the case of *Wood v Smith (1992) 3 ALL ER 556 C.A
(1993) CH 90, the testator made a holograph will commencing with the statement “My Will by
Percy Winterbone . . .”. The testator did not sign his name at the foot of the will after writing the
dispositive provision. Since the testator had indicated in clear terms to the attesting witnesses
that he regarded his name written by him as part of the phrase “My Will by Percy Winterbone”’,
as being his signature and since the evidence established that by writing his name, he intended to
give testamentary effect to the document he was in the course of writing, it followed that the
requirements of s 9(a) and (b) had been satisfied and that the 1986 document had been validly
executed.
Joseph perez wrote his name at the top of the will which is valid according to section 5 of the
Wills Act. It can be said that he intended to give testamentary effect by writing his name because
he ended the will with ‘signed by the above-named testator as his will’ and then he wrote his
name. Using Weatherhill v Pearce and Wood v Smith as authority, the testator’s signature at the
top of the will would be deemed as a valid signature and he intended the signature to give effect
to the will.
Where a testator signs his name not on the will itself but on the envelope containing the will,
the court will admit such a will to probate if they are satisfied that the signatures appearing on
the envelope is intended to be the signature of the will and not put these merely for identification
purposes. In *Re Mann’s Goods (1942) P. 146 a testatrix forgot to sign her will, but put it in an
envelope and wrote on the envelope, “Last will and testament of J. C.Mann”, signed the
envelope and had it witnessed. It was held that the testatrix intended the signature to give effect
to the will, which was therefore admissible to probate. However, in the Estate of Bean (1944) P.
83 a testator forgot to sign his will but wrote his name and address on the envelope. It was held
that the will was not valid. He had written his name on the envelope to identify rather than ratify
the will. Probate of the will was refused. The crucial distinction between the cases concerns the
testator’s intention. The same approach was adopted in *Re Beadle [1974] 1 All ER 493. The
testatrix made her will in the presence of two friends. The testatrix signed her will and one of the
witness also signed. The testatrix then wrote on an envelope ‘my last will and testament’, and
then sealed the envelope. Both the witnesses signed at the back of the envelope. The court held
that the testatrix could not have intended her name on the envelope to be her signature as she
thought that she had already signed the will, her writing on the envelope was simply an
identification of the contents. The problem with this line of reasoning is that it assumes that a
testator can intend to sign only once. The argument seems to be that if the first writing of the
name is intended as a signature then the second cannot be so intended. But is it not plausible that
a testator might intended when writing his name on an envelope to be both signing it and
identifying its contents?
The witness must attest the testator’s operative signature, that is, the one purported to execute the
will. In In the Estate of Bercovitz [1962] 1 All ER 552, the testator signed his will at the top and
the bottom. The signature at the top was invalid according to the law applicable at the time, but
the witnesses only attested that signature not the valid signature at the bottom. Consequently, the
execution was invalid. Although the law on position of signature has since changed, this case is
still good authority for the proposition that the witness must attest the testator’s operative
signature. Re Beadle is authority here as well. The facts of this case are similar to the fact
scenario given. Joseph Perez had written his name at the top of the will which is valid according
to section 4 and 5 of the Wills Act because he intended that writing his name on the will, will
constitute as his signature and give effect to the will. The subsequent writing of ‘the will of
Joseph Perez’ on the envelope will not constitute as signing the will if this line of argument is
used. It can be said that his operative signature was his first signature which he wrote at the top
of the will and he writing on the envelope is merely for identification purposes. From his actions,
it would not have been his intention to be his signature, just say what the envelope contains.

The signature of the testator must be made or acknowledged in the presence of witnesses.
Section 4 states that the signature of the testator "shall be made or acknowledged by the testator
in the presence of two or more witnesses present at the same time …". If the signature on the will
was not made in the simultaneous presence of two witnesses, the signature may be subsequently
acknowledged by the testator in their simultaneous presence. There are three requisites for a
valid acknowledgement that the will must already have been signed before
acknowledgement, at the time of acknowledgement, the witnesses must see the signature or
have the opportunity of seeing it and the signature must be acknowledged by words or
conduct. The judge in Hudson v Parker (1804) 1 Rob Ecc ruled that it is sufficient to say this is
my will, instead of this is my signature.
Section 4 lays down a chronological order of events which must be followed. There are two
successive steps: the testator must first complete signing or acknowledging his signature in the
simultaneous presence of at least two witnesses and the witnesses must then sign their respective
signatures. Section 4 does not specify where the witnesses should sign. The most sensible place
is close to the testator’s signature – alongside or just below – but the signature may be anywhere
on the will provided that it was intended to attest the testator’s operative signature. *In the
Goods of Braddock (1876) 1 PD 433. Hannen P stated (at pp. 434-5): “The law does not require
that the attestation should be in any particular place, provided that the evidence satisfies the
Court that the witnesses in writing their names had the intention of attesting. But the attestation,
if not on the same sheet of paper as the signature of the testator, must be on paper physically
connected with that sheet”.
Joseph Perez called the two witness and said ‘this is my will, I want you to witness it’. Saying
‘this is my will’ was sufficient to acknowledge his signature. However, the witnesses did not sign
and attest to his operative signature. They sign and attested on the back of the envelope to his
second signature which would not be regarded as a signature but just stating what is contained in
the envelope.
Section 4 also requires that each witness must attest and subscribe the will in the presence of the
testator. The witnesses must sign as witnesses that is, with the intention that their signatures
should be an attestation of the due execution of the will by the testator. In Re Colling (1972), the
testator made a will, and started to sign his name in the presence of two witnesses. Before he had
completed his name, however, Sister N was called away to attend to a patient, and testator
completed his signature in her absence; it was witnessed by J in his presence. When Sister N
returned, testator and J acknowledged their signatures to her, and she then signed. It was held
that the requirements of section 9 had not been complied with; it was essential that testator
should have signed the will or acknowledged his signature in the presence of both witnesses
before either of them had attested and subscribed the document.
Brett J explained in In the Goods of Gunstan (1882) 7 PD 102, CA, at p.113: ‘…it seems
obvious that where an acknowledgement has to be relied upon, the witnesses must see or have
the opportunity of seeing the signature. When they are required to attest the signature, they must
see or have the opportunity of seeing the person signing the document.
Section 4 requires a witness to sign or acknowledge his signature in the presence of the testator.
The testator must be physically and mentally present. The testator must be conscious of the act
done by each witness. The testator must also have seen or had the opportunity of seeing the
witness sign at the moment when they did sign or in the case of acknowledgement by witness,
the testator must have seen or had the opportunity of seeing the witnesses’ signature when the
witness acknowledged it. In Tribe v Tribe (1849) 1 Rob Ecc 775; 163 ER 1210, helps to clarify
the line-of-sight test. A will was executed a few hours before the testator died. The witnesses
signed at the dressing table in her bedroom. The testatrix laid on her bed with her back facing the
dressing table. She was unable to see the attestation. The court held that the attestation had not
occurred in her presence since it was impossible for her to turn to see the witnesses sign. In
Norton v Bazett (1856) Deane 259; 164 ER 569, the testator signed his will in the inner room of
his office in the presence of the witnesses. Since the table in the room was full of papers, the
witnesses returned to the outer room and signed the will. Although the door between the rooms
were open, the witness could not have seen the witnesses sign. It was held that the testator did
not see the witnesses sign and attest the will, consequently the will failed. Jospeh Perez was not
mentally present when the witnesses were signing and attesting the will because he was on the
phone and his back was facing the witnesses.
Conclusion
In conclusion, the will of Jospeh Perez would fail for a number of reasons. The testator’s
signature on the top of the will was valid and it was his first signature so it will be regarded as
his operative signature however the formal requirements of making a will were not entirely
followed. The witnesses signed and attested to the wrong signature which would render the will
invalid and the testator was physically not mentally present when the witnesses were signing and
attesting his signature.
(b) Omar Hoppie has come to your chambers and informed you that he is the sole executor of
the will of one Ranjit Rampersaud, popularly known as “Bim” who recently died at his
home in Third Street, Alberttown.

He hands you Rampersaud’s will, in which he has left the bulk of his estate to his
neighbor, Padma Dubraj.

On examining the will, you observe that half-way on the second page of his three-page
will, he signs the will as “Bim”. On the line immediately below appears the word,
“witness” and two signatures – one of Padma Dubraj, the other of a close friend, Lindon
Isles, who predeceased the testator, Rampersaud.

Advise as to the validity of the will.

Issues
Whether Bim is sufficient as a valid signature
Whether everything stated under his signature is valid
Whether Padma Dubraj is a valid witness since she is the beneficiary
Whether Lindon Isle death affects the validity of the will
Whether the will is valid

2. Flexton Campbell died leaving his widow Crystal as sole executrix of his will. Crystal
has consulted you for the purpose of having her husband’s will admitted to probate, but
upon inquiry, you established that while Campbell was affixing his signature to the will,
one of the subscribing witnesses, Shanice, who was unaware of the nature of the
document she was signing, left the room to answer an urgent call. Campbell nonetheless
continued to complete his signature in the presence of the other witness, Tamika. Tamika
then subscribed the will in the presence of Campbell .

Campbell’s son, Rayon, is contesting the will on the grounds that it was not validly
executed by his father.

Advise the executrix Crystal.

Whether Shanice leaving the room while the testator was signing the will affects the
validity of the will.

3. The testatrix went to the shop of Mr. Sandy Read, at 225, New Road, Vreed-en-Hoop,
grocer and wine merchant, which was near her residence. Both Mr. Read and Miss Mary
Jeffrey, his assistant, were in the shop, the former being engaged at the time with a
 commercial traveler, who was also in the ship and who stood between Mr. Read and the
testatrix. The shop, which was not large, had two counters, and Mr. Read was at one
counter. The testatrix went to Miss Jeffrey, who was at the other counter, produced a
printed form of a will, which, apparently, had already been filled up, and asked Miss
Jeffrey to see her sign it. The testatrix signed it, and Miss Jeffrey, who saw the testatrix
sign, then attested it. The traveler having left shortly afterwards, Mr. Read was asked by
Miss Jeffrey to go round to the counter where the testatrix had signed, Miss Jeffrey taking
his place at the other counter. The testatrix then said to Mr. Read, “This is my will. I
have signed it. Miss Jeffrey has signed it. Will you sign it?” At this time Miss Jeffrey
was attending to a counter at the other counter, and did not see Mr. Read sign the will.

Consider these facts taken from the case of Brown v Skirrow in 1902 and discuss
whether the will was validly executed.
This question requires a discussion on the requisites of a valid will. In order for a will to be valid,
it must satisfy certain requirement. The issues include:
1. Whether Miss Jeffrey in witnessing and attesting the testator’s will alone will satisfy
section 4 of the Wills Act and whether the witnesses in attesting separately affected the
validity of the will

2. Whether the acknowledge/ statement made by the testator was sufficient

3. Whether miss Jeffery in not seeing the other witness (Mr Read) attesting the will affected
the validity of the will
In the Goods of Web (1855)