The 1837 Wills Act: This month we complete the detailed look at the Wills Act 1837. As will writers are aware the 1837 Wills Act (WA1837), as amended, supplies the detailed background legislation that must be followed whenever a will is drafted. The actual text of the Wills Act is provided along with the current amendments and commentary as to the meaning and effect of the statute. By the addition of the full text of the WA1837 (as amended) will writers have the opportunity to read the actual words of this vital legislation which governs the way in which wills are validly conceived, drafted, interpreted and executed. You should read the statutory 1837 Wills Act text extracted and the associated notes carefully and then answer the usual 15 CPD questions. Sections that are not mentioned below have been repealed. 23 A devise not to be rendered inoperative by any subsequent conveyance or act. 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 such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. Section 23 confirms the primacy of the 1837 Wills Act in giving effect to a will, unless the will is revoked using the provisions of such an Act in preventing the operation of that will. 24 A will shall be construed to speak from the death of the testator. 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. Annotations: Modifications etc. (not altering text) C1S. 24 applied by Married Women's Property Act 1893 (c. 63), s. 3 In general terms a Will takes effect as if it has been executed immediately before the death of the testator, in relation to all of the subject matter of the gifts contained in the Will. Hence the expression “the Will speaks from death”. Unless there is a contrary intention expressed in the Will the subject matter of a gift is applied at the testator’s death, whether the gift is either specific or general. Where the Will contains a gift of “all of my shares in ABC Limited” and in the absence of any express contrary intention the gift will comprise all of the shares held by the testator on the date of his death. Thus shares purchased after the date of the Will may be included; but shares that are disposed of after the date of the Will may be excluded. When at the date that an instruction is taken from the testator, reference is clearly made to the subject matter of a gift that is in the possession of the testator at that time, a contrary intention is implied. For example in Re Sikes [1927] 1 Ch 364 the testator’s instruction referring to “my piano” did not extend to a replacement piano that he owned at the date of his death. The gift therefore failed by ademption – as the property, which was identifiable some time before the testator’s death did not form part of his estate at the date of his death. The need therefore when taking instructions is to identify clearly the subject matter of the gift and if necessary to draft a clause which for example takes account of proceeds of the sale or replacement of that gift. The effect of section 24 Will Act 1837 can be excluded by the use of express words. For example by defining the date on which the subject matter to be dealt with by the Will is to be ascertained. Page 1 of 6 However a will writer should take care when drafting the words expressing the testator’s intention to use precise words: words such as “now” or “at present” are not conclusive enough to overturn the prima facie intention that the Will speaks from death; that is the date of the testator’s death. In the event of uncertainty the Will provisions must be considered as a whole. If section 24 of the 1837 Wills Act is excluded by contrary intention and the Will contains a provision that is to speak from the date of the Will, then if the Will is subsequently republished by a later (second or more) execution or a later codicil, the effect will be that the Will now speaks from the date of that republication or codicil – unless a contrary intention is expressed. 25 Residuary devise shall include estates comprised in lapsed and void devises. Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect shall be included in the residuary devise (if any) contained in such will. This section introduces the doctrine of lapse, which confirms that a gift by will normally (unless subject to a contrary intention) lapses in circumstances where the donee predeceases the testator; so that the estate of the donee can only claim the benefit if the donee has acquired some interest in the property before he died. But see section 33 of the Wills Act 1837 below for a special exception, which is made in the case of children of the testator who predecease him. The effect of the clause has been examined in the context of secret trusts set up “dehors” (outside) the will for example in the cases of Re Gardner (No: 1) [1920] 2 Ch 523 and Re Gardner (No: 2) [1923] 2 Ch 230. 26 A general devise of the testator’s lands shall include copyhold and leasehold as well as freehold lands. A devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a . F1 leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the . F1 leasehold estates of the testator, or his . F1 leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. Annotations: Amendments (Textual) F1Words repealed by Statute Law (Repeals) Act 1969 (c. 52), Sch. Pt. III Clause 26 speaks for itself increasing the remit of the Wills Act. 27 A general gift shall include estates over which the testator has a general power of appointment. 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 such 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 such 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 property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such 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 such power, unless a contrary intention shall appear by the will. Every will writer should ensure that each Will drafted includes a gift of residue. Failure to include a valid gift of the residuary estate will result in part of the testator’s estate passing on the intestacy rules. Section 27 makes certain that all of the estate not otherwise disposed of is dealt with by an unlimited gift of residue, including any general power of appointment held by the testator over trust Page 2 of 6 property, being either real or personal property; especially to ensure that any trust default provisions are prevented from taking effect, causing unintended consequences. Where the testator exercises a power of appointment good practice requires that an express provision confirming the testator’s wishes should be included in the Will; so that there is no risk of the testator being unaware that the Will is also dealing with the testator’s interest in trust property, see Gibbons v Nelson [2000] Lloyd’s Rep PN 603. In which the court criticised the solicitor for failing to establish the client’s intentions regarding the destination of trust property under his control. The provision within section 27 does not apply to any special or hybrid powers of appointment, which act to restrict the actions of the appointee; but the section does apply even if the power is created after the Will has been executed. The property to which the power relates must be carefully and fully described within the Will.