ELEMENTS OF A WILL
There are basically four elements of a will:
1) Intended to Have Disposing Effect
A Will must express the testator’s real donative intention. It will not be a valid Will if the testator merely writes a statement importing information about his or her future intentions regarding his or her Will. Another example is where undue influence has been exerted upon the testator. As the testator is not expressing his or her true intention, the Will should be invalid.
2) Intended Not to Take Effect until After Death and to Be Entirely Dependent on Death for its Operation
If at the time of the execution of the document, the document is legally effective to pass some immediate interest in the property, no matter how slight, the transaction will not be classified as testamentary. If the transaction is not testamentary, the property will not be included as part of the estate and will not be available for creditors. If a document is not executed as a Will, and appears to pass property to other persons on the death of the person who owned the property, the validity of the instrument is likely to be called into question as an attempt to make a Will and evade the consequences of a testamentary act. The fact that a document describes itself as a Will and is executed as a Will does not necessarily make it testamentary. The entire document will be rejected from probate if all of its dispositions are operative before death. However, a part of the document that is testamentary, because it has no operation at all until death, may be severed and admitted to probate.
3) Intended to Be Irrevocable
A Will is always revocable even when it is expressed to be irrevocable and even if the testator covenants not to revoke it.
Even a statute such as the Wills Variation Act, which allows a court to vary a Will, does not alter the revocable essence of a Will. When a Will is revoked in breach of a contract not to revoke it, the testator or the estate may be liable in damages or subject to some equitable remedy. Where the Will is a mutual Will, the promise not to revoke may give rise to a constructive trust that is irrevocable, in favour of the Will’s beneficiaries. The term “mutual Wills” refers to Wills that dispose of property belonging to two persons, usually a husband and wife, who have agreed to pool their property and to provide, by their Wills, for its disposition according to an agreed scheme. Persons who make mutual Wills usually agree not to alter or revoke them without the other’s consent, and it is out of this agreement not to revoke that a constructive trust may arise. The agreement not to revoke may be incorporated in the Will by recital or otherwise, or it may be established outside of the Will.
