Wills

• Author: Karen Nunez-Tesheira
• Pages: 20-45

20 / Probate Practice and Procedure

STANDARD WILLS

A will is a revocable declaration in a prescribed form, made in contemplation

of death, expressing the intent of the person making it regarding the matters

which he intends to take effect after his death.1 In this regard, conditional

wills, joint wills and mutual wills all prescribe to the requirements with

respect thereto, but subject to the differences outlined below.

A CONDITIONAL WILLS

A conditional will is a will made with the intention clearly expressed that

it will take effect only on the happening or non-happening of a specified

event or contingency. If the will is so expressed and the specified event or

contingency occurs, or, in other words, if the condition is fulfilled, the will

is valid and will be admitted to probate. If, on the other hand, the specified

event or contingency does not occur, the will will be of no effect and will

not be admitted to probate.2The deceased would therefore be deemed to

have died intestate unless he had made an earlier will that the conditional

will was expressed to revoke.

For a will to be refused probate on this ground, it must clearly appear

from the language of the will that it was the testator’s intention to limit

the operation of the will, that is, for the will to be treated as conditional.

At times, because of the ambiguous nature of the language used, it is

difficult to determine whether, in referring to a particular event, the testator

meant to limit the operation of the will and so make it conditional or

whether the possibility of that event’s occurring was the reason or impetus

for making the will. If the testator meant to limit the operation of the will,

it will be deemed to be conditional. If it was the reason or impetus for

making the will, it will be, that is, it will be valid whether or not the event

happens. In such instances, the following two criteria are especially useful

to the courts in determining whether or not a will is conditional:3

1

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• whether the event or contingency specified in the will is associated

with a period of danger to the testator. If it is, the Court takes the

view that the danger was regarded by the testator only as a reason

for making a will. On the other hand, if it is not co-incident with a

period of danger, then according to the President of the Court in

The Goods of Spratt4it is difficult to see the object of referring to a

particular period unless it is to limit the operation of the will.

• whether the nature of the dispositions in the will bear some

connection to the time or circumstances of the contingency specified.

If it does, this is treated by the courts as evidence that the testator

intended to limit the operation of the will to the contingency

specified; in other words, to make his will conditional.

B JOINT WILLS

All Jurisdictions (save St Lucia)5

A joint will is a single instrument in which two or more persons (usually

husband and wife) give effect to their testamentary dispositions.

Although written in one document, it is treated as the separate will of each

person and as such it is:

•revocable at any time, by any of the testators, during their joint lives

or by the survivor after the death of one of them; and

•it is proved separately following the death of each testator.

This type of will is cumbersome and inconvenient because, on the death of

the first to die, when an application for probate is made, the original will is

retained by the Probate Registry. On the death of the survivor, an office

copy of the will must be obtained from the Registry. The copy must then

be submitted with the application for the grant and reference made in the

oath to the proceedings in which the original will is lodged.

C MUTUAL WILLS

A mutual will is one of two testamentary papers, made by two persons

conferring reciprocal rights or interests on the other, for the purpose of

giving effect to their respective intentions. By way of illustration, a husband

and wife may make separate wills giving a life interest in his or her respective

property to the other with the remainder to their child or children.6

Much of the advantage of such a will would be lost, however, if either

testator remained free to unilaterally revoke his mutual will. In order to