Ever wondered what does it mean when someone tells you that a will has to be in writing?
First and foremost, it should be understood that the general rule is as seen in s5(1) of the Wills Act (“WA”) whereby a will must be in writing with the exception of s26 WA regarding privileged will. In the context of privileged wills, the exception is that it can be oral. Privileged status is granted to soldiers, mariners or seamen who are in ‘active military service’. Privileged wills may arise in circumstances where a soldier is mortally wounded in combat, and makes a statement or oral disposition of their wishes as to who to leave assets when they die.
Moving on, it should be noted that the WA does not define the term ‘writing’. However, we may refer to the case of Leong Chee Kong & Anor v Tan Leng Kee whereby the court took the definition of ‘writing’ from the Interpretation Act 1948 and 1967 where it includes typewriting, printing, lithography, photography, electronic storage or transmission or any other method of recording information or fixing information in a form capable of being preserved. Therefore, as long as it can be preserved, the contents until all matters are disposed, fall within the meaning of writing.
It should be noted that a will written in a combination of ink and pencil may cause issues at probate as there is presumption that the writing made in pencil was merely deliberative and should be excluded from probate. In the Goods of Adams where a will has first been written in pencil and then inked over, the ink is intended to supersede the pencil. The wills written in pencil are being treated as deliberative and these would be excluded from probate unless there is evidence that they were clearly intended by the testator to be part of the will.
S5 WA is silent with the issue of the material to be used for the writing to appear on. However, cases suggest that any material would suffice provided that a permanent form of visual representation results. For example, In the Estate of Murray, a will made on a small piece of cardboard during a snooker game was upheld.
Besides, a will can be written in any language provided that there is reliable evidence as to what the language means. The testator can invent own language as long as people can understand what he means. If the testator provides his own dictionary in his will as to the meaning of his writing, there will be no need to resort to extrinsic evidence. For example, in Kell v Charmer, the testator left to one son ‘the sum of i.x.x.’ and to another ‘the sum of o.x.x.’. These were private symbols used by the testator in his jewellery business to denote prices or sums of money. Extrinsic evidence was admissible to show that the symbols represented 100 and 200 Pounds respectively. The will was upheld.
Moreover, the writing has to be decipherable. For example, in Re Berger, documents written in Hebrew were held to constitute a will. The test is whether the writing is decipherable. If it is, then S.5 of WA is satisfied.
In addition, it should be noted that in the issue of the application of modern technology, there seems to be no objection in principle in allowing videos or even floppy disks to be used as evidence of the contents of a will. But a video or a disk by itself cannot be regarded as being in writing. The video must be transmitted through another medium such as television. Similarly, a printout from the diskette may amount to writing for the purposes of this section.
Finally, there are generally no restrictions on the size of the materials used. A large plank of wood or a small piece of paper would be valid. In some common law jurisdictions, wills written on step-ladders, stable doors and tractors have been said to be valid.
