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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.
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.
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.
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.
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.