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COUNCIL OF LEGALEDUCATION
SIERRA LEONE LAW SCHOOL
SUCCESSION & ADMINISTRATION OF ESTATES

JOSEPH FOFANAH (ESQ)

(2024)
Witnesses Benefiting

S. 15 of the Wills Act 1837 provides that if a person who would derive a benefit under the
will acts as a witness, he cannot take any benefit under the will, although his attestation of the
will is good.

A beneficiary who is a witness or his spouse at the time of execution of the will is not
excluded from any benefit under the will (Re Limond (1915) 2 Ch 240) nor is the subsequent
marriage of such a witness and beneficiary invalidate the gift (Thorpe v Beswick (1881).

Where a gift arises under a testamentary instrument which the witness did not attest, the gift
will be upheld. For example, where a beneficiary takes a gift under a will and witnesses not
the will but a codicil to it, the gift remains valid.

Duty of a Solicitor to a beneficiary witness

When a Solicitor prepares a will he owes a duty of care to Testator (the client) and intended
beneficiaries under the will.

Where a Testator wishes to confer a benefit on a particular person, a Solicitor will be

negligent if he fails to point out to Testator that neither that person nor his spouse should
witness the will, or if he does not take reasonable care to ensure that the person or his spouse
does not act as a witness.

If the Solicitor fails in the aforementioned duty, and, as a result, the person is precluded from
taking a benefit, the Solicitor will be liable in damages to that person.

Ross v Caunters (1980) Ch 2 297: Testator instructed Solicitors to draw up a will to include
a share of residue for his sister-in-law. The Solicitors sent the will in this form to Testator, so
that he could execute it, but they did not warn him that the will should not be witnessed by a
beneficiary or the spouse of a beneficiary. One of the witnesses was the husband of the sister-
in-law, and as a result, she was precluded from taking the benefit under the will. The sister-
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in-law successfully sued the Solicitors, and recovered damages equivalent to the value of the
share of residue.

The duty of care has been extended to include a duty to ensure that instructions to make a will
are carried out expeditiously.

Privileged Wills

Certain categories of persons were allowed by S. 11 of the Wills Act 1837 to dispose of their
personal property as they might have done before the passing of the Wills Act.

In other words such persons were empowered to make privileged wills which would be valid
without the need to comply with the requirements of the Wills Act.

A privileged will may be nuncupative (completely oral), or it may be written, and if written it
need not be signed or witnessed.

The person making the statement need not know that they are making a will, all that is
required is that the statement shows an intention to make a will.

The Wills (Soldiers and Sailors Act 1918) widened the categories of privileged testators and
provided for real property to be disposed of by privileged wills.

Categories of privileged testators

a. Soldiers in actual military service

Who is a soldier?

A soldier is any person who is doing the job of a soldier.

In Re Wingham (1949) P 187 CA, the term ‘solder’ includes not only fighting men but also
those who serve in the forces as medical doctors, chaplains, nurses (In the Estate of Stanley
(1944) where a nurse serving under contract to the War Office on hospital ships was held to
be entitled to the privilege, a member of the Air Force (and In the Estate of Rowson (1944),
where the deceaseds were an RAF officer and a WAAF Squadron Leader respectively.)

Note: Does the privilege apply to mercenary soldiers?

What is actual military service?

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In order to be entitled to make a privileged will, a soldier must at the material time be in
actual military service.

This requirement will be fulfilled if the soldier is serving with the armed forces ‘in
connection with military operations which are or have been taking place or are believed to be
imminent’.

Re Wingham (1949): Testator joined the Royal Air Force during the Second World War and
was sent to Canada as a trainee pilot in 1943. He made an unattested will in Canada and died
a few months later in an aircraft accident.

Held: Testator was entitled to make a privileged will.

‘’ I do not think the test is whether the airman was in danger from enemy action at the
time when the will was made… In my opinion the tests are: (a) was the testator ‘on
military service’? (b) was such service ‘active’? In my opinion the adjective ‘active’ in
this connection confines military service to such service as is directly concerned with
operations in a war which is or has been in progress or is imminent.’’

A soldier may be in actual military service even when the nation is not at war, or long after
hostilities have ceased.

Sierra Leonean Soldiers currently engaged in military or peacekeeping operations in various

trouble spots of the world will also be regarded as being in actual military service.

Re Jones (1987), a British Army Corporal on a tour of duty engaged in internal security
operations against paramilitary forces in Northern Ireland was held to be in actual military
service.

b. Mariners or Seamen being at Sea

Who is a Mariner or Seaman?

The expression ‘mariner or seaman’ can apply to any sailor, even if he is engaged in a purely
civilian capacity.

This category includes any person serving in the Royal Navy, Sierra Leone Navy, Royal
Marines or Merchant Navy.

It does not matter, whether the person is a male or female or the capacity in which they are
serving, provided the nature of the service involves going to sea. See, for example, In the
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goods of Hale (1916) (Female typist on to the ocean liner Lusitania) and In the Estate of
Knibbs(1962) (barman on ocean liner Arcadia).

It is important to note that the rational of allowing the privilege in the case of these persons is
that they are removed from normal life by reason of their occupation.

What does being at sea mean?

On the whole, the courts have adopted a relaxed approach towards the issue of whether a
mariner or Seaman is at sea when his will is made.

In the first place, in In the Goods of Austen (1853), (an admiral on a naval expedition on the
Rangoon river) and In the Goods of Patterson (1898) (a sailor on a ship which was moored
on the Thames and ready to sail) were both held to be privileged. In the Goods of M’ Murdo
(1868), it was held that a will executed by a seamen while serving on a ship permanently
stationed in Portsmouth harbor was privileged.

Secondly, it has been decided in cases such as In the Goods of Lay (1840) that a sailor who
in the course of a sea voyage makes a will while his ship is docked in a foreign port will be
deemed to be privileged, even though the will is made on dry land.

Thirdly, it emerges from several cases that a seaman or mariner will be privileged if he has
not yet begun his sea journey, but is preparing to go to sea having received orders to join his
ship.

Examples:

In the Goods of Hale, it was held that a will made by a typist employed by the Cunard line
after she had received orders to join the Lusitania, but before the ship set sail was a valid
privileged will.

Re Newland’s Estate(1952), a merchant navy apprentice who made a will while on shore
leave when his ship was docked in Liverpool, but after he had received orders to rejoin the
ship, was held to be a privileged testator.

Re Wuson’s Estate (1952), a chief officer in the merchant fleet owned by the Anglo saxon
Petroleum was on furlough at home and at the end of his furlough made an oral will having
received instruction to join another ship and it was held that the will was privileged.

Implications of the Privileged status

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The hallmark of a privileged will is that it is not subject to the requirements of the wills Act.
This has a number of significant implications:

A privileged will is valid even if the formalities prescribed in s 9 have not been observed by
the deceased. In this connection, it has already be seen that an oral direction is capable of
constituting a privileged will. By the same token, ordinary letters which had not been duly
executed in the manner contemplated by s9 were held to be privileged wills.

An informal act or document by a privileged testator is capable of revoking a formal will

executed at an earlier date by the deceased person.

A privileged will may by itself be revoked by the testator either in a subsequent will or by his
subsequent marriage.

Where the privileged will is not revoked in the testator’s lifetime, it remains effective even if
at the time of his death he has ceased to be privileged

Re Booth (1926), an informal will made by the testator in 1982 when he was in actual
military service was admitted to probate on his death in 1924, which was long after he had
retired from the Army

Privileged wills are not caught by the rule in s 15 of the WA, which stipulates that where a
will is witnessed by a beneficiary or his or her spouse, the beneficiary’s interest lapses

Re Limond (1915), Testator, while on military service in India was mortally wounded on
patrol. On his deathbed, Testator dictated his will in which he left his residuary estate to his
brother-in-law who was his fellow officer. Although the brother-in-law witnessed the will,
the court held that this would not deprive him of his benefit, since Testator was a privileged
testator.

ALTERATIONS s 21 OF WA 1837

Even where Testator who is of sound disposing mind has executed a will in accordance with
the WA 1837, the actual operation of the will at his death may be materially affected by
certain events occurring after the execution of the will, namely, the revocation, alteration,
revival or republication of the will.

These ‘acts’ deal with the requirements for undoing what has been created.
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Alterations

Alteration means to ‘change’.

After someone has made a will, it is certainly possible, even probable, that at some future
date Testator may wish to make amendments to his will.

He may make entirely new provisions, particularly if circumstances change, for example, if a
main beneficiary were to predecease the Testator.

S 21 “ No obliteration, interlineation or other alteration 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 hereinbefore is required for the execution of the will….’

Opportunities should be taken at appropriate times, to update and review the will. When
Testator wishes to amend his will in any respect, the following are open to him:

 Execute a codicil clearly setting out the desired amendments, or

 Embody the proposed amendments in the will itself by means of such interlineations,
obliterations or other alterations as are considered appropriate.

The primary concern here is with the law in regard those alterations that are embodied in the
will.

Alterations, interlineations and obliterations are of two types:

i. those made before the execution of the will, and

ii. those made after the execution of the will

Alterations before execution

Where there is evidence that Testator altered his will before execution intending that such
alterations should form part of the will, the alterations are valid whether or not they were
signed and attested.

In effect the will is read in the light of these alterations and probate will be granted on this
basis.
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In practice, it is advisable for the alteration to be signed and attested because there is a
rebuttable presumption that unattested alterations, interlineations and erasures are made after
execution of the will and so are ineffective.

Unless this presumption is rebutted, section 21 of the Wills Act 1837 comes into play, with
the result that the alteration is deemed to be valid only if it has been duly executed (signed
and attested).

Beckley v Aubee (1968-69) S.C. 190(African Law Report (Sierra Leone) Index 1950-69)

Rebutting the presumption

This presumption may be rebutted either by evidence from the document itself
(internal/intrinsic evidence) or by extrinsic evidence or both.

Example: After testator’s death, a will is found as follows: ‘’Nle5000 to Joseph’’. The
NLe 5000 was in fact crossed through before the will was executed and the witnesses can
testify to this.

Even though the alteration was made before the execution of the will, it is presumed to
have been made after execution. Affidavit evidence of the witnesses is admissible to
rebut the presumption and establish that the alteration was made before execution. The
will is therefore admissible to probate as it stands and the gift to Joseph will not take
effect.

The following are examples of the circumstances in which the presumption has been rebutted.

Internal evidence

Re Tonge’s Goods (1842): the alteration is proved to have been written in the same hand
and with the same ink as the remainder of the document.

Extrinsic evidence: This may consist, for example, of declarations made by Testator, or
the evidence of witnesses and those involved in the preparation of the will.

Keigwin v Keigwin (1843): where the court accepted that direct testimony of an attesting
witness or the person who prepared the will showing that an alteration was made before
execution would suffice to rebut the presumption.
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Alteration after execution

The effect of s.21 is that an alteration made after the execution of the will is valid if the
alteration itself has been duly executed

What does due execution entail in the context of alteration?

Section 21 stipulates that the alteration must be executed in like manner as required for the
execution of the will.

Accordingly, it must be signed by Testator and at least two attesting witnesses in the manner
contemplated by s 9 of the WA.

It is not clear whether it is required that the witnesses must be the same as those involved
when the will was executed, although there appears to be no reason why this must not be so.

Re White (1990) 3 All ER 1: Testator dictated certain alterations which were copied onto his
will. He checked the alterations and wrote in a blank space at the end of the will ‘Alterations
to will dated 14/12/84’ and asked two witnesses to sign just below. They did so but testator
did not sign.

Held: Alterations had not been duly executed.

Further, it must be signed by testator or by someone in his presence and under his direction.

S.21 will be satisfied where testator signs the will without witnesses but later acknowledges
the signature to the witnesses who then attest that signature.

The signature of Testator and his witnesses:

 May be made in the margin or on some part of the will opposite or near to the
alteration; or
 May be contained at the foot or end or opposite a memorandum in the will referring to
the alteration.

In the Goods of Treeby (1875)): Testator made a will disposing of 19 leasehold houses in
favour of his children. Later he struck through the description of one of the houses, the
obliteration being signed by him but not by any witnesses. Near the end of the will an
interlineation appeared by which he left the house to his wife. At the end of the will,
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following the signatures of Testator and the witnesses, there was a memorandum stating that
‘No. 1, Westbourne Terrace is struck out for the benefit of my dear wife’.

Held: Since the memorandum was signed by testator and attested by two witnesses, and
referred to both alterations (the obliteration and interlineation), the will was admitted to
probate in its altered state.

Where an alteration made after the execution of the will is duly executed, such an alteration is
valid and probate shall be granted to the will as so altered.

Where there is an alteration in a will – how many signatures (altogether) will you have
in that will?

Presumption arising from making alterations in pencil

S. 21 does not specify the means whereby the alteration is to be made, but there is a
presumption that where a will is written both in ink and in pencil, the part written in pencil
is intended to be deliberative only, and not final and as such, shall not be treated as
forming part of the will unless the presumption is rebutted.

Hence pencilled alterations to a will written in ink will be presumed to have no effect even
though validly executed

Where the wording of the will is no longer apparent as a result of the alteration

If Testator wishes to alter his will by deleting certain words or clauses he may achieve this
end by obliterating them completely from his will.

Provided this is done in such a way that the original wording is no longer apparent on the face
of the will, the desired alteration will take effect, even if it was made after the execution of
the will.

In the Goods of Hamer (1944): Testator’s will originally contained a legacy of ‘the sum of
two hundred and fifty pounds’. Testator later completely obliterated the words ‘two hundred’
so that the will now reads ‘the sum of ….fifty pounds’.

Held: the original legacy of 250 pounds had been effectively altered to 50 pounds and the
will was admitted to probate on this basis.

On the other hand, Where Testator decides to delete certain words or clauses from his
previously executed will without completely obliterating them, so that such words or clauses
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are still apparent on the face of the will, the alteration will be valid only if it was duly
executed.

In this context, ‘apparent’ means ‘apparent on the face of the instrument in the condition in
which it was left by the testator’’

The yardstick for determining whether the words of a will are apparent or not is to enquire
whether an expert can decipher the words by natural means simply by inspecting the will in
the state in which Testator left it.

If the deleted words are still visible to the naked eye despite the alteration, such words shall
be admitted to probate with the rest of the will.