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WILLS ACT 1837

WILLS ACT 1837 - LONG TITLE

An Act for the amendment of the Laws with respect to Wills.{1}
[3rd July 1837]
Meaning of certain words in this Act:

[

WILLS ACT 1837 - SECT 1

1.] The words and expressions herein-after mentioned, which in their
ordinary signification have a more confined or a different meaning,
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, 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 the Tenures Abolition
Act (Ireland), 1662, and to any other testamentary disposition; and
the words "real estate" shall extend to manors, advowsons, messuages,
lands, tithes, rents, and hereditaments, whether freehold, ... 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 and other
chattels real, and also to monies, shares of government and 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 singular
number only shall extend and be applied to several persons or
things as well as one person or thing; and every word importing
the masculine gender only shall extend and be applied to a female
as well as a male.

S.2 rep. by SLR 1874

WILLS ACT 1837 - SECT 3
All property may be disposed of by will;

3. It shall be lawful for every person to devise, bequeath, or
dispose of, by his will executed in manner herein-after 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 his executor or administrator; and the power hereby given
shall extend ... to estates pur autre vie ... and whether the same
shall be freehold ... 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 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.

Ss.4, 5 rep. by SLR (NI) 1954; SLR 1976. S.6 rep. by SLR (NI)
1954; 1955 c.24 (NI) ss.46, 47 sch.3

WILLS ACT 1837 - SECT 7
No will of a person under age valid.

7. No will made by any person under the age of [eighteen years]
shall be valid.

S.8 rep. by SLR 1976

WILLS ACT 1837 - SECT 9
Every will shall be in writing, and signed or acknowledged by the
testator in the presence of two witnesses at one time, who shall
attest the will.

9. No will shall be valid unless it shall be in writing, and
executed in manner herein-after 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.

WILLS ACT 1837 - SECT 10
Appointments by will to be executed like other wills, and to be
valid, although other required solemnities are not observed.

10. No appointment made by will, in exercise of any power, shall
be valid, unless the same be executed in manner herein-before
required; and every will executed in manner herein-before required
shall, so far as respects the execution and attestation thereof, be
a valid execution of a power of appointment by will, notwithstanding
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.

WILLS ACT 1837 - SECT 11
Saving as to wills of soldiers and mariners.

11. Provided always, that 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.

S.12 rep. by 1865 c.112 s.1 sch.

WILLS ACT 1837 - SECT 13
Publication of will not requisite.

13. Every will executed in manner herein-before required shall be
valid without any other publication thereof.

WILLS ACT 1837 - SECT 14
Will not to be void on account of incompetency of attesting
witness.

14. 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,
such will shall not on that account be invalid.

WILLS ACT 1837 - SECT 15
Gifts to an attesting witness, or his or her wife or husband, to
be void.

15. If any person shall attest 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, 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.

WILLS ACT 1837 - SECT 16
Creditor attesting a will charging estate with debts shall be
admitted a witness.

16. 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 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.

WILLS ACT 1837 - SECT 17
Executor shall be admitted a witness.

17. 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 such will, or a witness to prove the validity or
invalidity thereof.

WILLS ACT 1837 - SECT 18
Wills to be revoked by marriage except in certain cases.

18. 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,
customary heir, executor, or administrator, or the person entitled as
his or her next of kin under the statute of distributions).

WILLS ACT 1837 - SECT 19
No will to be revoked by presumption from altered circumstances.

19. No will shall be revoked by any presumption of an intention on
the ground of an alteration in circumstances.

WILLS ACT 1837 - SECT 20
No will to be revoked otherwise than as aforesaid or by another
will or codicil, or by destruction thereof.

20. No will or codicil, or any part thereof, shall be revoked
otherwise than as aforesaid, or by another will or codicil executed
in manner herein-before required, or by some writing declaring an
intention to revoke the same and executed in the manner in which a
will is herein-before required to be executed, or by the burning,
tearing, or otherwise destroying the same by the testator, or by
some person in his presence and by his direction, with the
intention of revoking the same.

WILLS ACT 1837 - SECT 21
No alteration in a will after execution except in certain cases,
shall have any effect, unless executed as a will.

21. 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 such alteration shall be
executed in like manner as herein-before 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 such
alteration, or at the foot or end of or opposite to a memorandum
referring to such alteration, and written at the end or some other
part of the will.

WILLS ACT 1837 - SECT 22
No revoked will shall be revived otherwise than by re-execution or
a codicil, &c.

22. 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 manner herein-before
required and showing an intention to revive the same; and when any
will or codicil which shall be partly revoked, and afterwards wholly
revoked, shall be revived, such 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 shall be shown.

WILLS ACT 1837 - SECT 23
Subsequent conveyance or other act not to prevent operation of will.

23. 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.

WILLS ACT 1837 - SECT 24
Wills shall be construed, as to the estate comprised, to speak from
the death of the testator.

24. 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.

WILLS ACT 1837 - SECT 25
Residuary devises shall include estates comprised in lapsed and void
devises.

25. 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.

WILLS ACT 1837 - SECT 26
A general devise of the testator's lands shall include leasehold as
well as freehold lands, in the absence of a contrary intention.

26. 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 ... leasehold estate if
the testator had no freehold estate which could be described by it,
shall be construed to include the ... leasehold estates of the
testator, or his ... leasehold estates, ... 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.

WILLS ACT 1837 - SECT 27
A general gift of realty or personalty shall include property over
which the testator has a general power of appointment.

27. 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.

WILLS ACT 1837 - SECT 28
A devise of real estate without any words of limitation shall pass
the fee, &c.

28. Where any real estate shall be devised to any person without
any words of limitation, such 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 such real estate,
unless a contrary intention shall appear by the will.

WILLS ACT 1837 - SECT 29
The words ""die without issue'', or ""die without leaving issue,''
&c. shall mean a want or failure of issue in the lifetime or at
the death of the person, except in certain cases.

29. In any devise or bequest of real or personal estate the words
"die without issue," or "die without leaving issue," or "have no
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 such person, and not an indefinite
failure of his issue, unless a contrary intention shall appear by
the will, by reason of such person having a prior estate tail, or
of a preceding gift, being, without any implication arising from
such words, a limitation of an estate tail to such person or
issue, or otherwise: Provided that this Act shall not extend to
cases where such words as aforesaid import if no issue described in
a preceding gift shall be born, or if there shall be no issue who
shall live to attain the age or otherwise answer the description
required for obtaining a vested estate by a preceding gift to such
issue.

WILLS ACT 1837 - SECT 30
Devise of realty to trustees or executors shall pass the fee, &c.,
except in certain cases.

30. Where any real estate (other than or not being a presentation
to a church) shall be devised to any trustee or executor, such
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 such 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.

WILLS ACT 1837 - SECT 31
Trustees under an unlimited devise, where the trust may endure
beyond the life of a person beneficially entitled for life, shall
take the fee. &c.

31. Where any real estate shall be devised to a trustee, without
any express limitation of the estate to be taken by such 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 such beneficial interest shall be given to any person for
life, but the purposes of the trust may continue beyond the life
of such person, such devise shall be construed to vest in such
trustee the fee simple, or other the whole legal estate which the
testator had power to dispose of by will in such real estate, and
not an estate determinable when the purposes of the trust shall be
satisfied.

WILLS ACT 1837 - SECT 32
Devises of estates tail shall not lapse where inheritable issue
survives, &c.

32. Where any person to whom any real estate shall be devised for
an estate tail ... shall die in the lifetime of the testator
leaving issue who would be inheritable under such entail, and any
such issue shall be living at the time of the death of the
testator, such devise shall not lapse, but shall take effect as if
the death of such person had happened immediately after the death
of the testator, unless a contrary intention shall appear by the
will.

WILLS ACT 1837 - SECT 33
Gifts to children or other issue who leave issue living at the
testator's death shall not lapse.

33. 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 such person shall die in the lifetime of the testator leaving
issue, and any such issue of such person shall be living at the
time of the death of the testator, such devise or bequest shall
not lapse, but shall take effect as if the death of such person
had happened immediately after the death of the testator, unless a
contrary intention shall appear by the will.

WILLS ACT 1837 - SECT 34
Act not to extend to wills made before 1838, nor to estates pur
autre vie of persons who die before 1838.

34. This Act shall not extend to any will made before the first
day of January one thousand eight hundred and thirty-eight; and
every will re-executed or republished, or revived by any codicil,
shall for the purposes of this Act be deemed to have been made at
the time at which the same shall be so re-executed, republished, or
revived; and this Act shall not extend to any estate pur autre vie
of any person who shall die before the first day of January one
thousand eight hundred and thirty-eight.

S.36 rep. by SLR 1874






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