Mark Warwick studies the requirements of a legitimate will
On 31 January 2012 and 2 February 2012, the Court of Appeal handed down judgments dealing with the formalities required for the making of a will. In each case the court was faced with a conflict between upholding the testator’s intention and enforcing the requirements of s 9 of the Wills Act 1837 (WA 1837). Although the two judgments were plainly prepared by differently constituted Courts of Appeal in ignorance of one another, the judgments adopt a similar approach to the construction of s 9. This approach is one that demands an insistence upon exact compliance with the statutory requirements for the making of a will contained within s 9.
Literalism v intention
Since, in other fields, such as the construction of contracts, literalism often gives way to the party’s intentions, it is important to recognise that the formalities required to make a valid will are strictly enforced. It is for this reason, if no other, that the recent cases justify examination. From a practical point of view they could lend assistance
