CHAPTER III

WILLS

The will or testament of a man is one of the most important instruments of the law, affecting as it sometimes does the disposition of immense wealth, great estates, or other possessions. It is one of the simplest things in the world to draw correctly, to execute correctly, and to make binding on the successors of the testator. On the other hand, there is nothing in the whole law more capable of signally failing through some trifling omission.

People have a tendency to go to a solicitor for the purpose of having a will drafted, but, while this is generally a good precautionary measure, if the solicitor be a reputable member of his profession, it is not altogether necessary. It is of no legal account whether a testator writes out a holograph or gets someone else to draw up the terms of a will for him. A typewritten document is equally as good as either. The main points connected with the subject can be set out in a few words. A testator must sign the will at the foot or end thereof, or it may be signed 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. 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 in the will. No will made by any person under the age of twenty-one years shall be valid. As a general rule, every will made by a man or woman shall be revoked by his or her marriage. All gifts or legacies by will to an attesting witness, or to the husband or wife of such witness, or to any person claiming under either of them, shall be void; but such witness shall be admissible to prove the execution of the will. On the face of it, these rules are easily grasped and easily conformed with, though the slightest divergence from them, or an oversight, may prove fatal to the validity of the will. For instance, it is of vital importance for the testator to sign his will in the presence of the two witnesses, and for the two witnesses to sign in each other’s presence[11] and in the testator’s presence.

This particular formality is perhaps the most important of all, as matters stand. An illustration will presently be given to bring this fact out more clearly. Some effort will also be made to exhibit the possibilities of injustice in connection with the execution of a will. These “possibilities” have become “certainties” too often in the past. Anomalies of the law can be found in hundreds of will cases, but the writer is now chiefly concerned with exposing flagrant examples of injustice arising out of a too strict regard for formality as opposed to _intention_. Intention, too, is of great legal importance in many directions, notably in crime, and, indeed, in the construction of wills as well, but it is of little account if it is not supported by the usual formalities of execution. Such matters come within the jurisdiction of the Probate Court, the Divorce Court transformed for the occasion. (The chameleonic complexion of the Probate, Divorce and Admiralty Division of the High Court of Justice, has already been touched upon.)

The primary object at present is to show, quite simply, the working of the Statute of Wills, which came into operation January 1, 1838.

Towards the end of the month of March, not many years ago, _A_, the son of _B_, was asked by _B_, his mother, to instruct a solicitor to draft a will, leaving him, the son, all the real and personal property of which she, the mother, died possessed, or which might fall in to the credit of her estate. She told _A_--her only child (the offspring of her first marriage)--that she had already provided for her second husband, _C_, during the years of her married life. The son duly carried out his mother’s request, though he had little suspicion that her death was at hand. Nor had she, in spite of the fact that she was supposed to be suffering from influenza, and had a nurse in attendance at the time. In due course, the draft will was left at the house by the solicitor. _A_ gave the matter no more attention, and for several days received favourable reports of his mother’s illness, both from her medical attendant, and from the trained nurse. On April 1st, an ominous date, he called at _B’s_ house but could not see her. The nurse, however, informed him that it was likely to be a long though not a dangerous illness. This was at five o’clock in the afternoon. At or about three o’clock the next morning, _B’s_ manservant arrived at _A’s_ chambers with a summons for him to go to his mother at once, as she was _in extremis_. _A_ hastened to dress, and, after a delay in finding a cab--for the servant had come on foot through _C’s_ intervention, _though the distance was four miles_--he hurried to his mother’s bedside. On arriving there, he found two nurses and a doctor present. _A_ asked whether the will had been executed, and his mother, who overheard the question, intimated that it was in a chest of drawers. _B_ was then given the will; she struggled to a sitting posture; the doctor handed her his fountain pen, but it was found to be dry. _A_ then went downstairs to obtain some ink. On returning, he discovered _C_, who had entered the room during his absence, standing over _A_, with what was afterwards described in the Coroner’s Court as a very menacing expression. _B_ held the pen and the draft will. In the presence of the doctor and the two nurses, she made a frantic effort to execute the document, which, had the pen been moist, would have borne markings, but her last spark of vitality gave out before she could be passed the ink. She fell back, whispering according to the evidence of the nurse standing nearer to her, “Thank God it’s done!” She was dead.

Here we have a testatrix at the point of death, still conscious and of perfect understanding, making a tragic effort to sign a will, in the presence of three reputable and disinterested witnesses. _A_ and _C_ can be left out of the question: they were interested parties; one under the will, and the other against it. In the result, the efforts of _B_, in her desire to secure her son in his natural rights, were quite futile. The dramatic scene in the chamber of the dying might just as well not have been enacted. According to English law, the will was not worth the paper it was written on; in fact, it was no will at all, as the pen in _B’s_ hand was dry. A peculiar injustice of the law, sorely felt in the case illustrated (where almost the whole estate consisted of personal property, _i.e._, stocks and bonds), lies in the fact that a husband, be he first, second or third, takes his intestate wife’s personalty absolutely, quite without regard to children of the marriage or of a previous marriage. A married woman may leave a very large or a very small estate in personal property, but if she dies intestate it goes to her surviving husband. It was thought a great thing when a married woman was first allowed to make a will as if she were still a _feme sole_. It would be, if not a greater thing, at least a protective measure where there are children, if the personalty of an intestate wife did not go absolutely and unconditionally to her husband.

The facts relating to _A_, _B_, and _C_, can be supplemented by a further illustration in connection with the law of wills.

It is in the nature of a sequel, for _A_ and _C_ are parties to it, and probate of the will of _B_ is the question at issue. Two or three years before her death, _B_ confided an envelope endorsed in her own handwriting to her son _A_. This incident took place at a fashionable French watering-place, just prior to the departure of _B_ (_A_ was remaining on). The writing on the envelope, which was sealed, announced that it contained “The last Will and Testament of _B_.” _A_ threw the envelope, carelessly, into a trunk with a mixed assortment of other papers. The trunk ultimately found its way to a country place of which _A_ was tenant. It was then and there forgotten, until the death of _B_ recalled the question of the endorsed envelope. An anxious investigation ultimately brought it to light, when it was found to contain a holograph will in the un-legal phraseology of the deceased lady. It was signed and witnessed approximately in due form. The signature of one of the witnesses was, however, that of the wife of _C’s_ brother; the other was that of a servant in her employ. This servant, who had subsequently married and disappeared, was traced, and she forthwith made an affidavit that _B_ had signed the will in her presence, and in that of the other witness; furthermore, that she, the servant-witness, and her mistress, had both attached their signatures in each other’s presence and in that of the testatrix. This was clearly perfectly true. Steps were then taken to prove the will, but owing to certain fictions on the part of the other side--statements that there was still another will, etc.--it became necessary to prove the will _in solemn form_. With the exception of an omission to appoint an executor, the will was complete and definite in its wording. _A_ was left everything. Unfortunately, twenty shares of stock, worth several thousand pounds, were mentioned as having been given on a certain date to _C_. Mention of this gift should not have been referred to in the will, which was about six years old. It was clearly the confirmation of a gift, so that it could be shown that _C_ had profited from time to time to a considerable extent during his wife’s lifetime. Meanwhile, during the six years which had elapsed between the making of the will and the death of _B_, _B_ had exchanged with _C_ the stock referred to in the will for other property of equal or greater value. When the case got to the Probate Court, _C_, after taking action to obstruct the free passage of the will by entering a _caveat_, agreed to withdraw opposition if he were forthwith handed half the stock in dispute. _A_, forced into a financial corner by an intimation that the wife (one of the will witnesses) of _C’s_ brother would come forward and swear that she and her servant were not both actually present together at the time of the signing of the testatrix, was compelled to transfer the stock to _C_. _A_ was granted letters of administration _cum testamento annexo_ (“administration with the will annexed,” which is the equivalent of probate where no executor is appointed by the will). In this way the matter ended. Had not the difficulty arisen of combating an attack on the point of the combined presence of the witnesses and the testatrix at the moment of signature, _A_ would no doubt have been left in tranquil possession of what was after all his rightful property. This apparently trifling detail compelling the presence of all three parties at the time of signature is of enormous importance. The greatest issue may hang upon it. The quality of witnesses is also not to be forgotten. No one who it is intended shall profit under a will should be used, for, though good as a witness, he or she is bad as a beneficiary. Then, again, a person with hostile motives can always quite easily go into court and swear that he or she was not actually in the room with the testator when the testator and the other witness attached their signatures. This was the suggested line in the case stated.

A probate action of some passing interest, owing to the notorious criminal reputation of the testator, recently came before the Probate Court, Sir Samuel Evans, the President of the Probate, Divorce and Admiralty Division, sitting. The will of Crippen, the murderer, was in dispute. It appeared that shortly before suffering the death penalty, Crippen made a will, in which he left all of his property to the woman Le Neve, or Neave. Her counsel contended that, until the applicant representing the defunct Mrs. Crippen’s next-of-kin had conclusively proved by admissible evidence the fact of the wilful murder of the wife by the husband they could not oust the legal personal representative from obtaining probate. Mrs. Crippen’s sister was the applicant, and the application was grounded on the contention that Crippen was not entitled to any benefit arising out of his own felonious act. (It seems that the bulk of the property left by Crippen was personal property which had come to him from his wife at her death--incidentally, after he had murdered her.) Le Neve’s counsel argued that Crippen, as he had suffered the extreme penalty of the law, was no longer a felon.

“The judge said that the court had, in special circumstances, discretion to pass over a legatee. Crippen had been convicted of the murder of his wife, the sentence of death was carried out, and there were special circumstances in the case. Therefore, he (the judge) would pass over the legatee of Dr. Crippen (Miss Le Neve), and grant letters of administration to the solicitor of the sister of Mrs. Crippen (Mrs. Theresa Hunn). Here the representative of a convicted felon claimed to be entitled to the estate--her only claim being one resulting from a felonious act. This was exactly as if Crippen himself had made the claim. It was clear that the law was that no person could obtain or enforce any rights resulting from his own crime; neither could his representative. The human mind revolted at the very idea that any other doctrine could be possible in the English system of jurisprudence.”

The judgment is interesting. It would in truth seem somewhat anomalous for a man to be able to murder his wife, succeed to her property, be convicted of the murder, and then leave such property to his ex-mistress.

There has not been a great deal to bring out in this chapter, chiefly because the points which have forced themselves upon the mind of the writer are in reality few in number, though important in their results. In drawing a will, it may be remembered, it is necessary to revoke all previous wills, codicils, etc. It is essential that the two witnesses and the testator should sign in each other’s presence.[12] It is also wise to bear in mind that marriage revokes a will and that the personal property (leaseholds, jewels, stocks, bonds, etc.) of an intestate wife goes to her husband absolutely. The drafting of a will is one of those things which could generally better be left to a reputable solicitor, though a testator may, if he avoids ambiguous directions, do the work for himself. The advantage in personally drawing a will lies in the certainty of secrecy, something which is not always to be found in a solicitor’s office. The witnesses should know that the document is a will, and they should be carefully chosen for their purpose. Where considerable property is at stake, it is frequently a great injustice to let it pass under the rules which apply to an intestacy. The anomalies of the law in this direction are more patent, perhaps, than they are in connection with wills.

FOOTNOTES

[11] It seems that it is not always absolutely necessary for the witnesses to sign in each other’s presence.

[12] If not always essential, it is desirable.

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