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v) The will was witnessed by Darren, Sams Friend named Sarah and Carlas

husband, Fraser.

The issue in this question is whether Darren, Sams friend named Sarah and Carlas
husband, Fraser is a valid witnesses to the will for the will to be valid in the eyes of
law.

Will according to Section 2 of the Wills Act is a declaration intended to have


legal effect of intention of a testator with respect to his property or other matters which
he desires to be carried into effect after his death. Nevertheless, Wills Act is not
applicable to Muslims in accordance to Section 2(2) of the Wills Acts as there are
other law provided to cater Muslims wills. Generally, for a will to be valid in the eyes
of law, it shall fulfil five requirements that is provided in the Wills Act. These are the
testator must be age of majority, testator is mentally capable of making a will, the will
must be made in writing, the will shall be signed by the testator and witnessed by at
least 2 person.

In applying the law, Sam has made a will following Section 2 of the Wills Act
and the Wills Act applies for him as he is not a Muslim in accordance to Section 2(2).

Next, since this question focus on the validity of the witness to the will, we shall
discuss further on witness to the will. According to Section 5(2), there shall be no less
than 2 person as a witness to the will. They shall see and attest the testator signing
the will. They are required to be aware of whats going on as Section 5(2) require as
such. If the testator sign the will in a public place without anyone being aware of whats
going on, this does not satisfy Section 5(2). This has been discussed by the court in
Blake v Blake where the testatrix signed her will and asked her witness to sign
afterwards. Nevertheless, when she signed her will, the signature was covered from
the sight of the witness with a bloating paper. Thus, the court held that the will is not
valid as a proper attestation by the witness was not fulfilled. Similarly, in Re Colling,
the nurse who supposedly becoming the witness was called away and came back
after. The court held that the will was invalid as this does not fulfil the requirement in
Section 5(2) as one of the witness was not aware when the testator completed his
signature. Next, the signing of the will must be witnessed by a person who is capable
of being a witness. In Re Gibson, the court held that a blind men may not be a witness.

In applying Blake and Re Colling to the question, it can be assumed that all
witnesses are aware of the signing of the will as nowhere in the fact has stated the
otherwise and that all of the witnesses are capable of being a witness as they are not
incapable as per Re Gibson.

Attestation is the requirement to authenticate the testators signature, thus the


witness shall sign personally and sign as a witness. The signature can be affixed at
anywhere on the will as the testator are required to sign the will with the presence of
the two witnesses at once. Next, following Section 10 and Section 11 of the Wills Act,
a creditor and the executor may be a witness to the will if they are within the definition
of that particular section. Nevertheless, according to Section 9 of the Wills Act, a
spouse to the beneficiaries cannot be a witness. This can be seen in Estate of Bravda
where the court held that when the spouse attested to the will, the will has failed to be
admitted to probate. Other than that, in Ross v Caunters, the solicitors of the testator
was sued by him as the solicitors failed to inform the wife that she is not qualified to
be a witness as his wife is the beneficiaries.

Referring to the problem in this question, since Darren is an executor within the
meaning in Section 10, he is a valid witness. Next, for Sarah, it can be assumed that
she has fulfilled the requirement in Section 5(2) as well as she was not related to any
of the beneficiaries as per Estate of Brada. Nevertheless, since Fraser is Carla
husband and Carla is one of the beneficiaries, this has contradict Section 9 and fulfilled
what judge has said in Estate of Bravda where a spouse who becoming a witness has
render the will to be invalid.

Other than that, the testator must also be of sound mind and physically present
for a will to be valid. In Tribe v Tribe, the testatrix was unable to turn herself in to see
the witness signing, hence the will was found to be invalid. Furthermore, the will will
not be invalid on the ground of incompetency at the time of its execution or at any time
afterwards in accordance to Section 8 of Wills Act.
In applying to the law, since all of the witness is sound of mind and physically
present, it can be said that they has fulfilled the requirement.

In conclusion, Sams will is valid although it was witness by Carlas spouse,


Fraser within Section 9 of Wills Act as Darren and Sarah has fulfilled the requirement
in Section 5(2) where there shall be at least 2 witnesses in order for a will to be valid
in the eyes of law.

vi) Sam did not sign the will. Instead, he put his thumbprint at the bottom of the
last page.

The issue is whether Sams thumbprint at the bottom of the last page is a valid form
of signature by a testator within the requirement in Section 5(2) of the Wills Act.

According to Section 5(2), the testator must sign his signature at the will. This
was incorporated in Re Salman where the judge held the will to be invalid as the will
was merely signed at the top, hence does not fulfilled the requirement in Section 5(2).
The will must be signed with his own intention and not influenced by alcohol or duress,
coercion and fraud.

In applying the law to the current situation, Sam must put his signature at the
will in accordance to Section 5(2). This is because if he failed to do so, the wills will be
invalid as per Re Salman.

However, the signature need not to be in full. This is because in Re Chalcraft,


the testator was very sick that she cant sign properly and merely wrote E Chal. The
court held that the will was found to be valid. A will may also be signed in various way
depends on the situation and circumstances. This can be seen in Re Finn and Re
Parsons where a thumbprint is accepted as a signature. Another example can also
be seen in Re Savory as the assumed name is also held to be valid signature.
Furthermore, in Re Jenkins, a stamped name was also accepted to be a valid
signature for a will.
In applying Re Finn and Re Parsons to the question, since both cases affixed
their thumbprint as signature to the will which is similar to the current situation as Sam
has affixed his thumbprint at the last page of his will, hence it can be said that Sam
thumbprint is a valid form of a signature to the will.

Where the intention is concerned, the intention meant as intention to give legal
effect to the will. A will can even be signed by any other person as long as it is directed
by the testator to bring the will into having a legal effect with his intention. For this to
be valid, the testator must be in the right frame of mind and understand the
consequences of what he is doing when he asked a third party to sign the will on his
behalf as mentioned in Clark. In Re Clark, the court held that the testator who has
asked a third party to sign the will for him with additional note that a third party has
signed for him under his direction is a valid will as the testator has the intention to
make the will.

Discussing Re Clark into the current situation, since Sam signed the will by
affixing his thumbprint to the bottom of the last page himself, he did not made any
involvement of a third party in signing his will. Thus, his will can still be valid.

Next, the signature for the will must be made in presence of two witnesses who
is aware of what the testator is doing in accordance to Section 5(2). However, if the
signature was not acknowledge by at least two witnesses, it will render the will to be
invalid as in Brown v Skirrow, the court held the will to be invalid as when the testator
signed the will, one of the witnesses was unaware of what was going on. Thus this
shows that when a testator is signing a will, two of the witnesses must be well aware
of whats going on. If the witnesses failed to acknowledge and knows what was going
on when the testator is signing the will, the wills will eventually rendered as invalid will
in the eyes of the law.

In applying the relevant law to the situation, since the will was witnessed by two
competent witness, Darren and Sams friend, Sarah. This can be said that Sams will
has fulfilled Section 5(2) of the Wills Act and contrary to Brown as both of the witness
in current situation is aware of what was going on.
In conclusion, since Sam has affixed his thumbprint as form of his signature, it
can be said that his thumbprint is a valid form of signature by a testator within the
requirement in Section 5(2) of the Wills Act.

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