Law of Wills & Inheritance – LLB311

JB Clarke, the Law of Succession

Prof Bande, Wills and the Law of Inheritance
KG shelf in the Main Library

The law of Wills is concerned with what happens when one dies. Unlike
the law of trusts, the law of wills creates a testamentary trust. We will
look at the methods of devolution of property: Testate and Intestate. The
final aspect is Probate which deals with the one entrusted to act as a
trustee for one who has passed one.

- The nature and scope of

- The history of the laws of wills in Malawi
- Testacy and Testamentary freedom
- Electronic will and technological developments
- Alteration and Revocation of Wills
o The Kamuzu Banda Will
- The Status of Customary Heirs
- Construction of a Will
- Testamentary gifts
- Pension and Insurance Benefits
- Deceased testament

Read
- M. Glover, “A Social Welfare Theory of Inheritance Regulation,” UTAH
Law Rev (Vol.2018/2) [2018] p. 411
- J.M. Morton, “The Theory of Inheritance,” HARVARD LAW REV (Vol,
8/3) [1894] pp 161-167

This is an extension of property law and a variation of the law of trusts

and equity. It governs to what happens to property or property rights after
someone has died. The rights to an object of property cannot just be held
in the air when someone dies.

The nature and Scope

The law of Wills and Inheritance concerns the passing of property rights
from A to B (Heirs and survivors) upon death. It is distinguished from the
law of succession because this deals with inheritance of rights.
Inheritance and succession are two distinct terms. Inheritance is
understood as referring and limited to the transfer of property rights and
obligations from deceased persons to their heirs. In contrast, succession
means the transfer of status, office or position from deceased persons to
their heirs. See Bhe and Others v Khayelitsha Magistrates [2004]
ZACC 17. A deceased cannot pass on more rights and obligations from
what you had. (Nemo dat non…) One cannot also inherit more than what
the deceased had. However, they can inherit less rights than what the
deceased had.

Inheritable Property
Section 3 of the DEWIPA describes the inheritable property as including
all causes of action which survive the deceased, clothing and institutional
money but does not include any property which passes to another person
by right of survivorship. Section 3 of the Statute Law (Miscellaneous
Provisions Act) describes how a cause of action is an inheritable
property. Note that not all causes of action survive the deceased’s death.
Section 10 of the Miscellaneous Provisions Act says that all causes
of action except those for defamation, seduction, inducing one spouse to
leave the other, or for damages on the grounds of adultery survive the
deceased. This means heirs can sue for breach of contract suffered
by the deceased.

Inheritance is a future right which only accrues at death.

Group Tutorial question

Read Hohfield, Dual Relationships and look at which aspects of Hohfield
relate to the law of inheritance.

Basic Concepts in the Law of Inheritance

1. Inheritance
This is the process by which an object of property descends to a
survivor on the death of an owner.

2. Succession
The process or order in which a person becomes entitled to a title,
dignity or honor

3. Estate
The sum of someone’s assets, legal rights, interests, entitlements,
and obligations to objects of property of any kind minus the
liabilities at the time of death.

Approaches to Ownership and Justification for death related

transmission of property.
In inheritance and at death, the transfer of property is by transmission of
property.

1. Contract-Based
 Recall John Locke. The key aspect is the intention of the owner of
the property to transfer their property. This happens when one has
left a valid will, conferring them property rights. The testator is free
to express their intention in the will with regards to the property.

2. Market-Oriented Approach
This focuses on the transactional nature of the will itself.

3. Personhood Theory to Property

Due to the personal attachment of property, the law should give you
freedom to facilitate an extension of that personality when you give
it to someone else.

4. Trust-Based notions of Property Ownership

This is dependent based. People who depend on the testator should
be able to benefit from their estate when they die.

To what extent is testamentary freedom manifested under Malawian

Law?

In the French legal system, it is mandatory to leave property to your

children limiting the application of testamentary freedom.

Read Daniel Haliday, “The Inheritance of Wealth: Justice, Equality

and the Right to Bequeath,” Oxford University Press, 2018

Practice Tool
Read Kamuzu Banda’s Will. Look at which approaches of ownership are
characterized in the will and identify which rights are attached to which
objects of property

Inheritance as a Social Phenomenon

Recall the French Legal System. This gives out the idea that the concept
of inheritance is not universal and varies from society to society.
Inheritance has been a problem in Malawi in the past when the dual
system, English Legal system and Customary Law, was in play. See
Machinjiri v Kapusa [1924]. The concept of ownership came in with
the passing of the Central African Order in Council in 1896. Encumbrances
such as easements have also contributed to the problematic nature of
inheritance over land.
Any society respecting the rules of ownership has rules governing the
devolution of that property when someone dies. This recognizes the
private ownership of property in the society solidifying the notion that
property or the estate does not die with the testator. The concept of
inheritable property is also not universal. In Malawi, even though causes
of action are inheritable property, not all causes of action are inheritable.
Cases of defamation and seduction are examples of such causes.

Another gap is on new types of property where the argument is whether

such new property can be inheritable property.

Questions of customary estate being devolved have also been raised in

Malawi since one does not hold title to the property but mere beneficial
rights. The problem is whether these benefits can be devolved. The
coming of Human rights has influenced the evolution and application of
inheritance laws in law. See Tembo (suing as next of friend of
Mzunda Mpando) v Administrator General [2014] MLR 407.

Does the DEWIPA reflect prevail social economic realities of Malawi?

There are two types of inheritance: Testate – where someone inherited

due to the existence of a valid will and Intestate – where there is no valid
will or a will has been made invalid. An addition type of inheritance in
pension under the pensions benefit scheme. The customary regime of
inheritance has been abolished.

Sources of Law in the Law of Wills and Inheritance

- The Constitution
o Right to property
o Rights of children
o Section 20
o Rights of Women
- The Reception Clause of 1907
- Statutes
o Deceased Estates (Wills
o Electronics Transactions and Cyber Security Act
o Marriage divorce
o Child Care, Protection and Justice Act
o Pensions Act
o Gender Equality Act
o Statute Law (Miscellaneous Provisions Act)
o Probate
- Doctrines of Equity
The objectives of Wills and Inheritance
- Devolution of property in an orderly manner
- Manifestation of intentions of property owners

THE HISTORY OF THE LAW OF INHERITANCE

The Colonial Period

The whites came in with their concept of property and introduced the
capitalist economy as we view it now. The Europeans brought
individualization and commercialization of rights in land, doing away with
the idea of the locals that they had a communally-based right to access
and use of to the land. The land became a commodity due to the
introduction of the market economy. Western education and religion also
influenced the inheritance laws as well as family laws. The African Order
in Council 1889 then led to the reception of English laws on property. This
made other English Laws applicable in the territory including Statutes of
Distribution of 1670, Statutes of Distribution of 1685, the Wills Act of
1873, the Intestate Estates Act of 1884, and the Intestate
Estates Act of 1890 became applicable in the country. The Wills Act
regulated the making of wills whilst the intestate Estates Acts
regulated intestate inheritance. However, these laws only applied to
British subjects and Foreigners between 1889 and 1902 as the African
Order-in-Council did not completely displace the customary laws. In 1902,
the 1889 African Order-in-Council was replaced by the 1902 British
Order-in-Council, Malawi’s first written constitution, which clarified the
legal uncertainties between 1889 and 1902. The most important feature
of the 1902 Order-in-Council was that it expressly stated that it and other
ordinances made under it applied to all persons in the country, whether
natives or non-natives. This led to a dual system of laws in the Country
where customary law applied to a specific extent and English Law did to
another.

There were also efforts to introduce the English Law of inheritance to

Africans in the protectorate through the monogamous institution of
marriage which opposed the polygamous nature of marriages allowed
under customary law. This led to the enactment of the Marriage
Ordinance of 1902 which introduced statutory marriages. A husband
under such a marriage could not engage in polygamy under customary
law; he could only get divorced through English-based courts; and
intestate inheritance followed Section 39 of the Marriage Ordinance
which summarily said :
A person contracted a marriage in accordance with the provisions of
the Marriage Ordinance and died intestate leaving a widow or
 husband, the personal property of such intestate or any real
property shall be distributed in accordance with the provisions of
the law of England relating to the distribution of intestate’s estates.
The implication of this was that once a person who married under this
ordinance died intestate, the property would only devolve to the
immediate family and if other spouses existed, they would receive
nothing according to English laws which only recognized the nuclear
family.

The formalities under the Wills Act proved cumbersome for Africans. Thus,
the colonial government enacted the African Wills and Succession
Ordinance of 1960. The ordinance’s first benefit was it provided a
simplified procedure for making wills by Africans which only required the
following to be valid: it had to be in writing, signed or thumb-marked by
the testator, in the presence of two competent witnesses. The African
Wills Ordinance gave Africans freedom of choice between using the will
and the customary law of inheritance. The Ordinance included a limitation
to testamentary freedom stating that if the testator left out a surviving
spouse or child, such a person could apply to the African Court nominated
to administer the will.

Read S. Roberts, “A Review in the Law of Succession in Malawi.

See Mtemanyama v Kitty [1957] R&NLR 234

Rea S. Roberts, “The Malawi Law of Succession; Another Attempt

at Reform

See Josaya v Josaya [2023] MWHC Fam 3; Masanje v Masanje

[2022] MWHC Fam 1

Assignment
Discuss the influence of the Wills Act of 1837 on the inheritance
laws of Malawi
WILLS UNDER TESTATE INHERITANCE
This is inheritance in the instance where someone has left a valid will. The
will is at the heart of the testate inheritance. Wills are important because
they minimize conflicts amongst testator beneficiaries. People make wills
because the testators know best who can handle what and who deserves
what. Wills also offer vindication of property rights.

What, then, is a will?

This is a revocable declaration made in a prescribed form expressing
the maker's intentions concerning the disposition and devolution of their
property and other matters which they desire should become effective
on or after their death. The will is revocable at any point during the
testator’s lifetime and it has to follow certain procedures to be valid. In
the DEWIPA, a will is defined as the “legal declaration by a person of his
or her wishes or intentions regarding the disposition of his or her property
after death.”

Not only is the will an expression of intentions, it is a legal declaration

made by the testator which has legal effects. It is distinguished from other
forms and kinds of declarations because the will is a legally binding
declaration. It is also important to note that the definition of a will as a
legal declaration of the maker’s “wishes or intentions regarding the
disposition of property” breaks down into two:
- The will must express the wishes or intentions of the testator.
- The wishes or intention must be regarding the disposal of the
testator’s estate.

Functions Of the Will

1. Disposive function
This is the main function of the will. The will disposes of the
testator’s property either by a direct gift or via a testamentary trust.
This disposal brought by the will is often achieved through a series
 of specific gifts to specific beneficiaries. If the document does not
dispose of property, then it is invalid and won’t take any effect even
if the heading calls it a will.

2. Appointment Function
The will also serves the function of appointing executors. According
to Section 3 of the DEWIPA, an executor is a person to whom the
administration of the estate of a testator or part of it is entrusted by
express or implied appointment. The appointment is clearly put out
in section 5(2) of the DEWIPA where it says that one can appoint
people to be executors so long as they are not minors. Although,
executors have various duties including ensuring the remains of the
testator are properly disposed of and administering the deceased’s
estate, failure to appoint an executor does not affect the
validity of the will.

3. Expressive Function
The will allows the testator to express their wishes on what
someone should get, in what amounts and why they should get
what was given. The will may also be used to express other wishes
including funeral arrangements and disposal of remains even
though this is not legally binding at common law but has an
effective moral force. The law does not enforce such wishes because
it does not recognize property in the dead body of a human being.

4. Testamentary function
A will can also be used to revoke other wills. The current will acts as
evidence that all other wills prior to the one being read have been
revoked and this can be achieved through an express statement in a
subsequent will or by implication. This is clearly stated in Section
9(1) of the DEWIPA.

A will can also be used to create a trust. The trust can be created to
take effect during the lifetime of the settlor (Inter-vivos trusts) or
can be created using a will to take effect after the testator/settlor’s
death (testamentary trusts). The latter type of trusts has wills which
identifies the trust property, appoints trustees and identifies the
beneficiaries to the trust.

Characteristics of a Will
a. It is ambulatory.
The word ambulatory comes from a Latin word which translates into
“mobile, shifting, or mutable. This simply means that will move with
the testator’s life. To that end, it only crystallizes on or after the
 death. On the date of execution, it is a valid will but it doesn’t take
effect until the testator’s death. This has two effects: (a) the
contents of the will are mere declarations of the testator’s intentions
during the lifetime of the testator and are not binding, irrevocable
instructions. (b) depending on the wording of the will, any property
acquired after the execution of the will may be added to the
deceased’s estate.

b. It is revocable.
The testator has the power to change the will from time to time. See
section (9) codifies the common law principle by adding that the
testator may at any time revoke his or her will, either partially or
wholly. Testators can revoke a will by destroying the with the
intention to revoke it, by making in a subsequent will or some
document executed like a will a statement of revocation or by just
making another will. Kynios’s case (1609) 8 CA 81b. since the
testator can only leave one will, the latest will prevails over any
earlier wills.Douglas Menzies v Umphelby [1908]
c. The Mutual wills. Read Re: Green [1951] Ch. 848; Re: Haggar
[1930] 2 Ch 190.

Testamentary Freedom
The idea of a will revolves around the concept of testamentary freedom,
aka freedom of testation which simply refers to one's power to decide
how to dispose of his property. This also extends to situations where one
decides not to write a will. Anglo-American jurisdictions place a lot of
emphasis on the concept of testamentary freedom making it a central
concept of inheritance in their common law traditions. However, this
principle is not universally endorsed. The huge question asked here is “to
what extent should a testator be able to dispose of his property as he
wishes?”

Tutorial
Read section 23 of the constitution; the penal code on necessities of life;
the DEWIPA section 11; and an article by M. B. Lesley, “The Myth of
Testamentary Freedom,” 1996 Arizona Law Review. Read A. Fenenigho,
“statutory limitations to Testamentary Freedom in Nigeria: A comparative
appraisal. Read Section 3(1) CCJPA and 15 of the DEWIPA

According to M. Leslie in “The Myth of Testamentary Freedom,”

testamentary freedom exists for the vast majority of testators who
happen to have the same sense of duty and moral obligation that the law
implicitly imposes but often not for those holding non-conforming values.
The duty and moral obligation being talked of here is that of the testator
to provide for those individuals the courts view as having a superior moral
claim to his estate, usually a financially dependent spouse.

Section 3 (1) of the CCJPA stipulates, in paragraph (a) that in addition to

the duties imposed on section 23 of the Constitution, the parents must
not deprive the child of his or her welfare. This could extend to situations
where the child should be a beneficiary of a will but was not included.

To what extent does the DEWIPA and Malawian Law incorporate

the principle of testamentary Freedom?

Justifications for and against Testamentary Freedom

The main argument for testamentary freedom by Sloan and others is that
the right to dispose of property is an expression and an extension of the
right to property. Having toiled to accumulate property over years, Sloan
and the proposers argue that in the same way, the law gives one the
freedom to accumulate property during their lifetime, they should allow
the freedom to bequeath the property in whichever manner they see fit.
Critics argue against this proposition saying that although one has the
right to dispose of their property, that right is only enjoyed by living
owners. They argue that all property rights including this one cease at the
moment one dies. So, the dead do not own property rights and
obligations. Others have gone to the extent of saying that making a will is
contrary to nature.

Secondly, testamentary freedom provides room for more intelligent and

informed estate disposal than rigid rules of intestacy because the testator
has superior information regarding how the wealth must be shared
amongst his family members.

The third argument in support of testamentary freedom is economic. It argues that the liberty to
attestation creates an incentive for people to be industrious and save. It argues that people accumulate
more wealth and property because they are assured that they shall decide what to do with it. Therefore,
testamentary freedom adds to the utility owners derive from what they acquire and enhances their
incentive both to produce and to save wealth.

Limiting Testamentary Freedom

The law does not allow unlimited testamentary freedom. Certain
policy considerations limit the application of the principle. The law, for
example, will not allow one to destroy their property after their death.
This stems from the idea that one is only disposing (transferring) of the
property not destroying it.
The basic principle taken away from this limitation is that testamentary
freedom should not offend rules of order and public policy and freedom.
Read Browne v Burdett [1882] 21 Ch. D 667.

Facts
An old lady, Anna Maria Burdett who lived
in Gilmorton, Leicestershire demanded in her will that her house be
boarded up with "good long nails to be bent down on the inside", but for
some reason with her clock remaining inside, for twenty years. She
directed her trustees to visit the house every three months to see that
the trusts were effectually carried out, and if any trustee neglected this
they should lose their entitlements under the will.
Holding
Bacon VC cancelled the trust altogether, and held that the twenty-year
term was invalid for the house, yard, garden, and outbuildings. He said
very briefly,
I think I must “unseal” this useless, undisposed of property. There will be
a declaration that the house and premises were undisposed of by the
will, for the term of twenty years from the testatrix's death.

Browne V Burdett

Testamentary Freedom under Malawian Law

The grand scheme of Malawian Law does not directly or explicitly address
the principle of testamentary freedom. See section 5 (3) and Section 11
(1).

Advantages of Testate Inheritance

i. It allows you to express your intentions as the testator
knows best.
This gives the deceased owner control over the manner and
order of inheritance, giving the owner of the property the last
opportunity to decide who gets what and how much of their
property. It presumes that the testator knows best how their
property should be administered.

ii. It allows the testator to set conditions for the distribution

of property.
Aside from choosing the beneficiaries, the testator can also place
conditions on beneficiaries both for qualifying for a gift and how
they may or not use their inheritance. The conditions, however,
need not be contrary to public policy otherwise they will be
 invalid. The Testator may also set conditions for the usage of the
gift.

iii. It is inclusive.
Testate inheritance allows the testator to include those
individuals who would have been left out under intestacy rules.
Testate inheritance allows a person to benefit total strangers
such as charities or friends on top of relatives like uncles,
cousins, and grandparents who are usually left out under
intestacy.

iv. Vindication of the right to property.

Testate inheritance compliments the testator’s right to property.
Recall that among the bundle of rights is the testator’s right to
exclude others from benefitting or using his objects of property.
At the end of the tunnel is the right to dispose of the property
whether by gift, sale, or abandonment only that this crystallizes
at death.

v. Lessening Inheritance Disputes

Testate inheritance reduces inheritance disputes as a well-drafted
will communicating clearly the testator’s preferred heirs to his
estate and those that will get nothing cannot cause any
disagreements. With intestacy, most people make claims on the
estate.

vi. It allows one to make very personal statements.

The will not only accords the maker the power to distribute
property but to also make personal statements about their
property and the possible heirs and beneficiaries since the will is
often accompanied by sentimental thoughts and feelings about
the beneficiaries.
Substantive Requirements for Will Making
The most important aspect to note is that the will takes effect after
someone has died. The requirements are necessary to establish a will’s
authenticity when dealing with issues of mental and physical capacity at
the time of making the will. This is why the law provides requirements and
formalities to be followed to make a valid will. Section 5 of the DEWIPA
discusses what constitutes a sound mind and adds that the testator must
be a majority age. Sound mind and maturity age are collectively known as
testamentary y capacity. Section 5 (1) reads:
“Subject to this Act, a person who is of sound mind and is not a
minor may dispose of all or any of his or her property after his or
her death by will.”

Testamentary Capacity
This means the competency to write a valid will. According to the section
above, the testamentary capacity to dispose of property by will is divided
thus into two attributes:

1. Age-related capacity.
This is the first requirement to make a valid will. Section 5 of the DEWIPA
provides for age capacity. The concept is that one need not be a minor. A
minor is defined in section 3 of the Act to mean “A person who has not yet
attained the age of 18 unless the person is lawfully married; is heading a
household and not below 14; or holds property in his/her right”.

The law makes exceptions for certain minors to have the capacity to make
wills and are termed “fictitious adults.” These exceptions and fictitious
adults are created to cater for circumstances where persons under 18
have adult responsibility. Firstly, persons under 18 but are “lawfully
married” [in the context of child marriages]. These persons thus have the
legal age-related capacity to write wills. The marriage regarded here must
have been conducted in a country whose legal age for entering into
marriage is below 18 since the MDFRA holds 18 as the legal age for
getting married in Malawi. Such marriages are accepted because section
12 of the MDFRA recognizes any foreign marriages.
Secondly, persons between 14 and 18 who are spearheading households
are also accorded the age-related capacity where both parents have pre-
deceased the children. The children are thus forced to take care of the
siblings. This circumstance thus gives them adult responsibility and age-
related capacity.
Lastly, persons under 18 who hold property in their own right are not
minors under the DEWIPA. This entails that every person, regardless of
age, who holds property in his/her own right has the age-related capacity
to execute a will.
 2. Soundness of Mind
Soundness of mind is a common law term and the DEWIPA does not clarify
what soundness of mind means. This phrase, however, is synonymous
with “mental capacity” to do something. Thus, a person is of “sound
mind” to do something or make a decision if the person is mentally
capable to do that thing or make that decision. This follows if the person
has the cognitive ability to perform the act or make the decision.

The test for determining soundness of mind is the degree of

understanding necessary to appreciate the sufficiency and nature of the
act. See Banks v Goodfellow; In the Goods of Wilkes [2006] WTLR
1097. In Malawi, the test was approved in Mkwapatira v Storey &
Anor [2012] MLR 324.

Facts
The applicant, notwithstanding the death of one Featherstone Alexandar
some years ago, continued to believe that a man still pursued and
molested him and the mere mention of Featherstone Alexander's name
was sufficient to throw him into a state of violent excitement. He
frequently believed that he was pursued and molested by devils or evil
spirits, whom he believed to be visibly present. However, it was
contended that in between the fits, he was of sound mind to make the
will which the defendant challenged.
Issues
The question is whether on both or either of those days, the testator
was of sound mind so as to be capable of making a will.
Holding
The judge created a test to establish whether one was of sound mind
during the making of a will. He said that: (1) It is essential to the
exercise of such a power that a testator shall understand the
nature of the act and its effects; (2) shall understand the extent
of the property of which he is disposing; (3) shall be able to
comprehend end appreciate the claims to which he ought to
give effect; and with a view to the latter object that (4) no disorder
of the mind shall poison his affections, pervert his sense of right, or
prevent the exercise of his natural faculties; that no insane delusion
shall influence his will on disposing of his property, and bring about
disposal of it which would not have been made otherwise.
Banks v Goodfellow

Facts
The plaintiff and some other children born from the deceased’s first wife
brought an action that following the death of the deceased, it was
known that he had executed a will naming the defendant as the
executor. In the will, only the children from the second marriage [2ns,
3rd, and 4th defendants] were to benefit to the exclusion of the plaintiff.
The plaintiff brought the action to declare that the disposition was
unlawful and that the deceased was illiterate and lacked mental
capacity and the legal formalities of making a will were not satisfied.

Holding
The court held that the testator did not have the necessary sound of
mind because he had failed to understand the full extent of his estate
having disposed of property that did not belong to him to a person who
already owned the property. The will was invalidated because the
witnesses could not authenticate the thumbprint of the testator and one
witness had vehemently said that the will executed was not what she
signed.
Olive Kwapatira v Edward Storey and others

Requirements for the test

1. Understand the effects and nature of the transaction.
The testator has to appreciate what a will is and what it does and
that the document they are making will dispose of their property.
The testator must be aware that he is engaged in a testamentary
act – expressing wishes that will take effect on his death. The
testator doesn’t necessarily need to know the technicalities of will-
making. Read Clitheroe v Bond [2021] EWHC 1102

Facts
The testator had left out the plaintiff in any of her two wills by
saying in her will that the defendant was a “shopaholic and will
just spend her inheritance.” She says Jean suffered from a
complex grief reaction from about the time of Debs’ death and a
continuing affective disorder beyond it, which appeared by her
depression and insane delusions regarding Sue, together with a
poisoning of her mind against Sue.

Holding
Neither the 2010 nor the 2013 Wills can be admitted to probate.
John (The defendant, appointed executor to the estate) had failed
on the balance of probabilities to prove that Jean was not suffering
from an affective disorder of the mind and was not suffering from
delusions which affected her testamentary capacity when she
made either will. The judge cited Key v Key saying that extreme
grief or bereavement reaction was found to amount to an affective
disorder that impaired testamentary capacity.
 Clitheroe v Bond

2. Understanding the extent of the Property being disposed of.

The testator must understand the nature, type and size of their
estate, meaning they must be able to recall the assets that
constitute their estate. The testator does not need to have intimate
knowledge of every asset but should generally know the state of his
property and what it consists of. See Waters v Waters [1841] 64
ER 263. If the testator includes property that is not owned by him
or her, it becomes indicative, therefore, that the testator lacked
sufficient understanding of his estate. Refer back to Kwapatira v
Storey above.

3. Ability to Comprehend and Appreciate the claims to which

he ought to give effect.
Under this limb, a two-part assessment must occur: firstly, the
testator must be able to remember and identify all those people in
his or her life who may be considered potential beneficiaries.
Secondly, weigh up their respective claims to his or her estate. The
testator is not obligated to benefit any of those people, but if he
excludes them, it must be clear that he had deliberately formed an
intelligent decision to do so. Read Battan Singh v Amirchand
[1948] AC 161; Easter v Griffith [2006] WTLR

The testator, with tuberculosis, wrote a will leaving his estate to

his nephews. A few weeks later he made another will in which he
left his entire estate to those friends, consequently declaring that
he had no living relatives. At the time of execution, the testator
was severely weakened by the disease and died the following day.
The second Will was invalidated by the Courts since at the time of
execution, it was found that his mind was mind was so far affected
by the diseases.
Battan Singh v Armichand
the mere fact that one relative who was supposed to receive has
been left will not make the will invalid automatically by saying the
testator lacked the capacity to understand potential beneficiaries.
As part of testamentary freedom, testators are free to benefit or
disinherit anyone without questioning their mental capacity. Gleeson
CJ said in the case of Easter v Griffith that:
Testamentary capacity is not reserved for people who are
wise, fair or reasonable… a person may disinherit a child for
reasons that would shock the conscience of most ordinary
members of the community.
 4. No disorder of the mind.
The testator must not be labouring under a “disorder of the mind
that shall poison his affections, pervert his sense of right or prevent
the exercise of his natural facilities. This is a development from
cases before Banks v Goodfellow where any disorder of the mind
rendered the testator incapable of making a will.

A good example of such a newly recognized form of disorder is

insane delusions. A delusion is a belief on any subject that no
rational person could and cannot be removed from the holder’s
head by reasoning with him. Banks v Goodfellow is a good
example. That case, however, must be distinguished from that of
Bull v Fulton1 and Re Nightingale.2
Facts
An elderly lady who made several wills over the years. She had 2
of her nephews who had done her legal work for free. For many
years she had included her nephews but a bit later she thought
her nephews were trying to deceive her, thinking they had forged
her signature. No foundation for the belief that her nephews were
doing the wrong thing could be held as insane delusions.

Issues
Court said the mere existence of delusion doesn’t deprive the
testatrix of capacity. One must ask, “Were the delusions of such a
nature that they had a direct bearing on the provisions of the
will?”

Holding
In this case, yes – the delusion had a direct bearing on the
provisions of the will and, therefore, the will was INVALID. If the
testatrix had taken them out as beneficiaries and left them as
executives then hard to prove the delusions influenced what was
her interest in the will may still be valid BUT because she
completely took them out, delusions did affect her understanding
and the nature of the dispositions made in her will and the will was
set aside on this basis. A delusion was defined as a belief, which is
not true to fact, which cannot be corrected by an appeal to reason,
and which is out of harmony with the individual’s education and
surroundings”• Mere existence of a delusion would not make
testator lack capacity
Bull v Fulton

1
[1942] 66 CLR 295
2
[1974] 119 Sol Jo 189
 Facts
The testator made a will leaving the major part of his estate to his
son. He was then admitted to a hospital. When the son visited him
and tried to help him with the pillows, he formed the delusion that
the son wanted to kill and immediately made another will revoking
the earlier will. The son successfully changed the validity of the
second will on the grounds that it was executed under a delusion.
Re Nightingale [No 2]

5. Going Beyond Banks v Goodfellow

Since the time it was decided, vivid advancements in mental health
have been. As such the applicability of Banks v Goodfellow has
been questioned. Instead of changing the test for something else,
the courts have shown an inkling to go beyond Banks v
Goodfellow. The first case of comparison is that of Re Key, Key v
Key.3
Facts
The testator was one Mr Key, an 89-year-old man, who was
devasted by the death of his wife of 69 years. The questions
forwarded by his sons against the validity of the will were for want
of testamentary capacity and want of knowledge and approval of
contents. Particularly, the question was whether bereavement had
affected the testator's mind to damage his testamentary capacity.

Holding
It was held that although there was no reported case dealing with
the effect of bereavement on testamentary capacity, the Banks v
Goodfellow test had applied to accommodate that.
Re Key, Key v Key

The evidence in Key v Key demonstrated that affective disorders

such as depression, albeit caused by bereavement, were more likely
to affect powers of decision-making than merely understanding
what was going on. A person faced with bereavement might have
the capacity to understand the nature of a will, the extent of his
estate, the relevant beneficiaries but could not have the requisite
mental energy to make decisions involving the will. The Judge in Re
Key thus concluded that the testator was devastated and not upset
and this could not exercise proper decision-making powers thus
making the will invalid. This adds on to the Banks v Goodfellow
test, considering decision-making powers and not only
understanding of the situation.

3
Free will
The most fundamental aspect of will-making, this concept or requirement
is not explicitly mentioned in the DEWIPA on section 5. It is, therefore, a
common law requirement for one to have a sound mind. The requirement
can be deducted from the general scheme of things, starting from the
definition of a will in Section 3 of the DEWIPA. The definition demands that
the will must embody the testator’s wishes and/or intentions to be valid.
In short, the will must be a product of the testator’s free will. Conversely,
the will is invalid if the testator had been forced, unduly influenced or
tricked into making the will.

The facts in Hawes v Burgess

Mrs Burgess had 2 daughters and a son. Previous wills had treated her
children equally. In 2007, Mrs Burgess created her final will which
effectively disinherited her son Peter in favour of her daughters Libby
and Julia. Mrs Burgess died in 2009, and had been suffering from
vascular dementia at the time of her death. Peter and Libby challenged
the will on the grounds that she did not have testamentary capacity and
also that she did not have ‘knowledge and approval’. They relied on
expert medical evidence prepared by a Professor Jacoby. He had not
met Mrs Burgess. Julia relied on the fact that the solicitor who had
prepared the will, Mr Webster, had followed ‘the golden rule’.
The judge at first instance upheld the challenge both on grounds of
testamentary capacity and also on the grounds that Mrs Burgess lacked
knowledge and approval. While the Court of Appeal upheld the decision
on the grounds that there was a lack of knowledge and approval, they
declined to uphold the decision on capacity.

Holding
The Court of Appeal found that Mrs Burgess had been close to Peter up
until the point of her death
Julia, the daughter who sought to rely on the 2007 Will had been
instrumental in the making of it;
Peter and Julia had fallen out at the time the disputed Will was made;
and the solicitor, Mr Webster, had not send a draft Will to Mrs Burgess
for her to check before executing the Will. Thus, the Court of Appeal
upheld the trial judge’s finding that the deceased’s last will (which cut
out her son) was invalid and that her earlier will (leaving everything
equally to her three children) therefore remained unrevoked.

Hawes v Burgess

Mummery LJ simply added that “the basis legal requirement for validity is
that people are mentally capable of understanding what they are doing
when they make their will and that what is in the will truly reflects what
they freely wish to be done with their estate on their death.”

Things that can vitiate Free will

a. Undue Influence
This refers to excessive pressure on a person to act in a way that
negates the pressured person’s free will. Any conclusive evidence
that the testator was unduly influenced in any way, even by making
gifts, renders the entire will invalid. Since it negates the testator’s
free will. So, force, violence or threats of violence may be used to
unduly influence someone. However, a distinction must be drawn
between undue influence and mere persuasion. Read the case of Hall
v Hall [1868]
Facts
The plaintiff put forward the will of her deceased husband, John Hall.
The defendant, William Hall, brother of the deceased argued that the
will was obtained by the undue influence of the plaintiff.

Discussion
The court gave the following reasoning in differentiating persuasion
from undue influence:
To make a good will a man must be a free agent. But all influences are
not unlawful. Persuasion, appeals to the affections or ties of kindred, to
a sentiment of gratitude for past services, or pity for future destitution,
or the like—On the other hand, pressure of whatever character, whether
acting on the fears or the hopes, if so exerted as to overpower the
volition without convincing the judgment,
is a species of restraint under which no valid will can be made. In a
word, a testator may be led but not driven.
In the end, the court found for the defendant that there was
undue influence.
Hall v Hall

b. Fraud
As a general rule, the validity of a will may be contested if it was a
result of fraud by the testator. The testator will lack free will where
he or she has been prompted to make the will or not make certain
dispositions because of a third party’s [a close relative, friend or
total stranger] fraud. Generally, fraud involves deceptive conduct
including false representation or concealment of facts that are
injurious to another and give an advantage to another. With wills,
the misrepresentation might be of the document being signed or
someone failing to explain the full nature and extent of a will being
executed.
 A distinction should be made between “Actual fraud” and
“constructive fraud.” The former exists where a person perpetrated
fraud on another intending to deceive him using tricks, pretense or
outright lies. The latter is an expression used for situations
resembling that which equity regards as wrongful or
unconscionable.

c. Fraudulent Calumny
Calumny is the intentional making of false statements about a third
party to damage or discredit their reputation or standing. In the
case of wills, it is called fraudulent calumny where one makes false
statements to the testator to discredit another person from being
included or causing them to be excluded in a will. The idea is that
if A poisons the testator’s mind against B who would
naturally be a beneficiary of the testator by casting
dishonest slanders on his character, then the will should be
set aside.

Facts
The case involves a dispute between sisters, Niki and Andre,
regarding the validity of their mother’s will, Agni, made shortly
before her death in August 2012. The will contained a declaration
by Agni that she had not made any provisions for Andre. The Will
contained a declaration by the testatrix that she had not made
any provision for Andre. Andre thus alleged that Niki fraudulently
influenced Agni to exclude her from the will by making false
allegations against her.

Issues
a. Whether Niki’s fraudulent calumny [making false
representations to induce Agni to alter her testamentary
intentions] influenced Agni’s decision to exclude Andre from
the will.
b. Whether the first court’s decision was correctly made.

Decision
The First Court’s findings were upheld, concluding that Niki’s
fraudulent actions influenced Agni’s decision. Fraudulent calumny
requires proof that false representations were made to induce a
change in testamentary intentions.
Christodoulides v Marcou
 It is of ultimate importance that the testator must be lied to. If the
exclusion was due to the testator’s own genuine belief and
disinheritance of the beneficiary occurs, then there is no calumny.

Case Summary
A claim to set aside a will based on fraudulent calumny failed
because of a lack of evidence to prove and show that the
deceased’s mind was poisoned against the beneficiaries. The
Court found that if the person genuinely believes that he is telling
the truth about a potential beneficiary though not true, there is no
calumny.
Re Boyes [2013]

d. Mistake
A will may contain incorrect information, especially in situations
where a third party for instance a lawyer draws up a will on behalf of
the testator. Failure to comprehend instructions results in mistakes
being put in the will and the testator may execute such a will
unaware of the mistake. In common law, a will can be invalidated if
he signs a wrong will since such mistakes go to the heart of the
entire transaction.

Facts
courts had to rule on a case where a woman prepared two almost
identical wills for herself and her sister but unfortunately signed
and executed the will that she drew up for her sister by mistake,
leaving hers unsigned.

The Court refused to grant probate to that will even though they
had similar terms of disposition. Mistakes relating to the words
used in a will are not excluded from a Will if the testator knows
and approves of those words.
In the Goods of Hunt [1875]

Knowledge and Approval of the Contents of a Will

Once one signs and executes a will, it will be assumed that they had the
knowledge of and accepted the contents of the will. The testator must
know and approve of the contents of the will. The will is invalid if the
testator despite being of sound age and mind did not know and approve
its contents. It is not necessary that all the contents have to come from
him, as long as he approves.

Ark passed away in a road accident three days after executing the will.
The will left land to one of the sons and the remaining money to his
grandsons and ultimately excluded the daughters. The daughters and
witnesses provided conflicting accounts regarding the testator’s mental
state and intentions at the time of making the will. Allegations of undue
influence and coercion on the testator in making the will were also
raised.

The major issue was whether the will was valid and if he had the
requisite knowledge and approval of the will’s contents.

The court rejected the allegation of undue influence and called the will
valid. The court determined that Ark had the necessary knowledge and
approval of the will’s contents and dismissed the claims of coercion in
making the will. “Knowledge and approval of the contents of a
will means only that the testator knows that he is making a will,
knows what the terms are, and intends that those terms should
be in it and given effect by the will.”
Ark v Kaur [2016]

Read Constable v Tufnell [1833] 4 Hagg Eccl. 468 [477, 12]. In the
decision of the case Harstillow v Stobbie [1865] LR 1 P & D 64., it
was decided that words like “draft anything and I will executive it” are
invalid. Such a testator will not have had the knowledge and accepted the
contents. Read Perrins v Holland [2010] EWCA 840;

Facts
Robert Perrins passed away on January 31, 2003. Robert executed a will on
September 26, 2001, which was granted probate on June 24, 2003. The net
estate was valued at over 180,000 pounds, mainly consisting of a
bungalow. Robert left his entire estate to Anne Dooney, described as his
carer in the will. Robert had a civil service pension, and his estate was to
benefit David's further education. Concerns were raised about Robert's
mental capacity, with conflicting evidence presented. Medical experts
provided opinions on Robert's mental capacity, with Dr. Gross indicating he
lacked capacity in his terminal year. Robert was born in 1955. While still in
his teens he was diagnosed with insulin-dependent diabetes. In 1991 he
was diagnosed as having primary progressive multiple sclerosis. By early
2000 his condition had deteriorated to the extent that was unable to read
or write, had little or no control over his movements and was confined to a
wheelchair. He had great difficulty in communicating.
Issues:
1. Whether Robert had the requisite testamentary capacity to execute the
will on September 26, 2001.
2. Whether the will accurately reflected Robert's intentions and
instructions.
3. Whether Anne unduly influenced Robert in the execution of the will.
4. Whether the will should be upheld or declared invalid based on the
evidence presented.
Decision:
After considering the evidence presented, the court found that Robert
Perrins had testamentary capacity when he executed the will on
September 26, 2001. The court determined that the will accurately
reflected Robert's instructions and that he knew and approved of its
contents. The court upheld the will dated September 26, 2001, and
pronounced in favor of its validity. Further proceedings were adjourned to
be dealt with in writing due to the small size of the estate. The ruling was
made because Robert indicated his consent by saying ‘Yes’ in answer to
the question ‘Are you happy with it?’. Mr. Ferguson [the lawyer] wrote in
the dates of the will and when requested Anne came forward and produced
a rubber stamp, which was rested first on the will and then on the Power of
Attorney. Robert’s hand or arm was placed upon the stamp and the weight
of his limb caused his mark to be made.
Perrins v Holland

The requirement of knowledge and approval is that the testator must

know the contents of the will at the time of executing the will. It suffices if
the instructions that were given by the testator or someone to create a
will were carried to the letter. The testator would be deemed to have had
knowledge and approval of the will being executed. Read in the estate
of Wallace [1952] 2 TLR 925; Guardhouse v Blackburn [1866] 1 PD
109.

The case of Guardhouse v Blackburn brought about six rules to

summarize the concept of knowledge and approval of contents:
1. Before according probate to the will, the court must be convinced
that the testator knew and approved the contents of the will at the
time of signing it.
2. Except in cases where suspicious circumstances can be attached,
the mere execution of the will shall be sufficient proof that the
testator knew and approved the contents.
 3. Even though the testator knew and approved the will, it can be
denied validity if it is proven beyond mistake that the testator didn’t
intend for the document to act as a will.
4. The will may also be denied probate if any fraud was purposefully
used against the testator to obtain the will although he knew and
approved the contents.
5. The fact that the contents were read to a capable testator and the
execution that might follow after that should be conclusive evidence
that the testator knew and approved the contents.
6. The above rules apply to parts of the will as they do to the whole of
it.

The Requirement is a separate point and must not be confused or

conflated with testamentary capacity. It is possible for the testator to
know and approve the contents of a will but lack the capacity to execute
the will. The reverse is also true in this regard.

Proving Testamentary Capacity

The death of the testator does not automatically give effect to the will.
The will must first be granted “probate,” which is a certificate of validity
given the courts. The one bringing the will forward must then prove by
adducing evidence that establishes that that was the deceased’s last will.

There is always a presumption that the testator always has capacity. Old
age is not proof of lack of capacity. The court presumes essa acta that “all
things were done rightly” and that testamentary capacity is the normal
condition of a person of full age. If one challenges the will, it is on him to
prove the will’s lack of validity.
Medical evidence is often adduced to dispute the validity of a will. The
practitioner might be one who treated the testator during the time the will
was executed or one reviewing the injuries. The medical practitioner
must however address and prove all four of the Banks v
Goodfellow test [that the testator understood the nature of the acts,
that he knew the extent of his estate, that he understood whose claims to
give effect and no disorder of the mind].

The Golden Rule

Recent law developments have shown that we need to have a golden rule
relating to those with old age or has been ill who seek to dispose of
property through a will. In Kenward v Adams [1987], the court
described the golden saying “The making of a will by such a testator
ought to be witnessed or approved by a medical practitioner who satisfies
himself of the capacity and understanding of the testator.”
In Allen v Emery, it was decided that just because someone does not
follow the golden rule does not automatically invalidate the will. Read
Kwapatira v Storey. The courts have agreed that there is no exhaustive
list of diseases affecting the mind. Some of the diseases recognized from
case law include dementia, sclerosis, Parkinson’s disease and cancer.
Other like TB, hypertension, meningitis, and schizophrenia also lead to
diminished capacity. Read Masiye Chafukila v Salamu CC 505 of
2015; Mc Cabe v McCabe [2015] EWHC.

Facts
Mrs McCabe died in November 2011 aged 82. A widow with two sons –
Timothy and Stephen – she made a Will dated 2007 which broadly
divided her Estate equally between them. But in 2011 Mrs McCabe
made a new Will, disinheriting Timothy in favour of Stephen. Timothy
subsequently claimed the 2011 Will was invalid because:
1. It had not been duly executed;
2. Mrs McCabe had not known and approved its contents; and
3. Mrs McCabe did not have the testamentary capacity to make a
Will at the time because she was delusional.
From the second half of 2009, Mrs McCabe was suffering from cognitive
impairment (Alzheimer’s disease) but when the solicitor who took
instructions for the 2011 Will saw her, he took the view that she did
have the requisite capacity.

Holding
1. One of the witnesses to the 2011 Will (who said he did not sign it
before Mrs McCabe) had merely forgotten he had;
2. Stephen’s arranging the trip to the solicitor was more out of
practicality than anything else. Both the solicitor and the
Psychogeriatrician agreed she appeared to know and approve the
contents of her Will; and
3. Although the solicitor had not set out what the legal test for
testamentary capacity was for the benefit of the
Psychogeriatrician, nevertheless Mrs McCabe still could make the
2011 Will and that she actively participated in formulating its
provisions. Mrs McCabe believed Timothy had instigated the
police investigation and that belief was justified by what
happened.

McCabe v McCabe

If the testator cannot speak, read, and write but only communicates in
signs, the courts will demand evidence to show that the signs meant what
was put in the will. In the Goods of Gedle [1864]. For someone who is
illiterate, the will must have been read out human.

The Doctrine of Suspicious Circumstances

This doctrine says that a will be denied probate where the testator leaves
the entire estate or a substantial part of it to the party who prepared the
will or someone closely connected to such a person. In the case of Barry
v. Butlin [1838] 2 Moo PC 480, it was stated that “If a party prepares a
will under which he takes a benefit, that circumstance that ought
really to excite the suspicion of the court, calls upon it to be vigilant
and examine the evidence in support… and it is judicially satisfied that
the paper… does express the true will of the deceased.” [emphasis
added]

The emphasized part stipulates that the doctrine must only extend to
cases whose circumstances excite the suspicion of the court. Examples
are found in the cases of Thomas v Jones [1928] and Brown v Fisher.
In the former, a Will written by the solicitor saw the testator leave a
substantial part of his stance to the solicitor’s daughter. In the latter, the
testator’s brother told him to travel a long distance to a solicitor who
drafted a will in favour of the brother. It is key that the benefit taken must
be substantial in relation to the entire estate other that suspicion does not
arise. It is also key that the evidence to remove such suspicion is above
and beyond the suspicion itself. As Perry Clark wrote “The greater the
degree of suspicion, the stronger must be the affirmative proof to remove
it.”
The rule in Parker v Felgate
The wording of Section 5(1) of the DEWIPA does not leave room for any
exceptions to the requirement of mental capacity for those making wills.
However, at common law, there is one exception as given in the case of
Parker v Felgate [1883] 8 PD 171. The rule states that:
“If a competent testator gives instructions to a solicitor to draw up a
will at a time when he or she has full capacity, the resulting will
which is drawn up may be valid even though at the time that the
will was actually executed the testator lacked full capacity.
All that is necessary is that at the time of execution, the testator must
understand that he is executing a will for which he had given instructions.
The rule was recently restated in Perrins v Holland [Supra]

The rule rests on the understanding that full capacity is necessary at the
time instructions are being given and not at the time the will is executed.
However, it is also critical that the testator must know and approve the
contents of the will to make it valid. 4 Therefore, if such capacity is lacking
the rule is inoperable and the will is invalidated as was in Re Flynn
[1982] 1 WLR 310.

The instructions must be given to the solicitor by the testator. However,

where the instructions are given through a lay intermediary, caution must
be exercised as stressed in Battan Singh v Amirchand.

FORMAL REQUIREMENTS FOR WILL MAKING

From the onset, it should be noted that compliance with the formalities of
making a will is too significant such that not following the will invalid.
Section 6(1) applies to a formal Will required to be executed internally
following Malawian Law.

1. Wills must be in writing

Writing is defined in section 2 of the General Interpretations Act to
include “printing, photography, lithography, type-writing and any
other modes of representing or reproducing words in visible form”.
This does not apply to oral wills. This does not apply to video and
audiotapes or film.

The language of the will is not material and it does not have to be in
English at all times. The choice of words used should be
straightforward. In Thorn v Dickens [1906], the testator only

4
See Perrins v Holland and Ark v Kaur for the definitions of “having knowledge and approval of the contents”
 wrote “all to mother” referring to his wife at the time. This Will was
probated and duly executed.

The form of the will does not matter, be it physical or electronic.

There are also no directions on what material the will should be
written on. In Hodson v Barnes [1926], the Will was written on an
eggshell. In addition, the material used to write the will does not
matter. However, when pencil and pen are combined. As put in In
the Good of Adams [1872], the pencil scribblings will be ruled out
for being deliberative and not formally part of the will unless
evidence proves otherwise.

2. Signed by the testator

There is no statutory definition of what a signature is in the DEWIPA.
Section 2 of the GIA only stipulates that a signature includes marks
or thumbprints for those who cannot write. The blacks’ Law
Dictionary defines it as A person's name or mark written by that
person or at the person's direction. Bande described it as a
handwritten presentation of one’s name written as proof of identity.
The signature must be made with the intention to give effect to
the will.

Instead of signing his name, the testator can sign by marking the
will in any way intended by him as his signature. This could be a
stamped signature, a mark, cross, or an inked thumbprint. In
Kwapatira v Storey and another, the court accepted the
testator’s thumbprint as a valid signature.
The signature by name does not necessarily have to be in full. In In
the Goods of Chalcraft, the testatrix was dying and only
managed to sign a codicil “E. Chal.” This was held to be sufficient as
what she wrote was intended to be her name and thus signature.
Similarly, in In the Goods of Emma, the Will began with her name,
Emma Cook. At the end, she wrote the words, “Your loving mother.”
The Will was made valid because she wanted the words she wrote to
be her name.

In the Wills Act 1837, it was a necessity that the signature should be
at the foot of the Will. The DEWIPA does not have such a
requirement. However, in practice, the signature is often at the end
of the will. Lastly, the DEWIPA does not allow third-party signing
of a Will.
 Testamentary intention (Animus Testandi)
Accidental Wills do not exist. Therefore, it is undisputed that to
ensure validity, the testator must have acted with testamentary
intention to give effect to the Will only after his death. Most
professional Wills begin with words that indicate the testator and
the address to prove the intention. However, other parts of the Will
may contain the testamentary will. Therefore, if a document
appears prima facie to be a Will, a rebuttable presumption
accrues to say that the testator intended it to be a Will.

This presumption can, however, be rebutted as was demonstrated in

the case of Lister v Smith [1863].
Facts
The Testator executed a Will that revoked an earlier will. Although
it called itself a Will, the court allowed [parol] evidence that
rebutted the testamentary intention, arguing that he only changed
the will to force his mother to leave some of his property and thus
did not have animus Testandi.

The court thus refused to grant probate to document.

Lister v Smith [1863]

The extrinsic evidence that displaces the presumption that the

testator had testamentary intention when executing the will must
be very cogent and conclusive.

The testator must sign the Will in the presence of at least two
competent witnesses. This means that whosoever is present during
the testator’s signing of the Will must be there as a witness, that is,
they must be aware that they are signing a Will. There is no ceiling
as to the number of witnesses but the minimum is two competent
witnesses. Competence comprises being of sound mind and over
the age of 18.

The witnesses must also then sign the Will in each other’s presence
and in the presence of the testator. Just as above, the witnesses
must know that they are signing a will.

3. Dating the will

This is not a substantive requirement but it is a good ground to
avoid any future disputes. See Section 9(2). Omitting the date will
not invalidate the will. However, the where there are two documents
which are in conflict with each, the date helps to guide the courts as
 to which one should be given the legal authority over the other.
Read Corbett v Newery.

4. Prescribed form
See section 6 (1) and (5). Sub-section 1 discusses the basic form
that a will must be put in. However, sub-section 5 gives the minister
the powers to prescribe a particular form that a will must be put in.

Generally, the prescribed forms of a will where derived from the Statute of
Frauds. Formalities serve four purposes.
1. The evidentiary function
A will in writing and duly executed provides the court with reliable
information regarding property disposition. This is so because wills
are used when the testator dies.
2. Channelling function
If no formalities were used, it would provide difficulties for the court
to determine what must and must not be a will as it provides
uniformity in application.
3. Cautionary function
Will making as an aspect of property law, is solemn and something
that must be revered. The testator must, therefore, be cautioned
against hasty dispositions of property.
4. Protective function
The will protects from fraud, forgery, and protects the property of
the testator

Statutory Compliance to Formalities.

The general provision is that the DEWIPA provides the formalities for will-
making such that non-compliance invalidates the will. The courts need not
add their formalities but only interpret the formalities. However, what
degree of compliance should the courts require?

Firstly, these formalities limit the power to dispose at death. The extent of
the applicability is dependent on how the provisions interpretation of the
courts as well. The literal compliance is essential to validate the will and
give it effect. Read re Davis [1951] 1 All ER 921; Re Collin [1972] 1
WLR 1440. These cases brought about the strict compliance doctrine
which is largely applicable to the interpretation of wills.
Read Re Groffman [1969] 2 All ER; Khunju v Khunju 1998 MLR 151;
Somanje v Somanje (HC) [1999] 3 MLR 96.

The argument made by others is that if the priority of the will is to respect
the intentions of the testator, then the formalities should not be seen as
the goals of the will. There is, then, a need to come up with doctrines that
act as alternatives to the Strict Compliance Doctrine to uphold the
intentions of the testator and not invalidate wills because one formality
was not complied with.

The Curative Doctrines to Cure the Strict Compliance Doctrine

1. Substantial compliance doctrine
The idea here is that once a testator substantially complies with
the formalities, the will should be made valid despite the evidence
of minor defects of the will. Read In the Estate of Kelly [1932]

2. Harmless error doctrine

EXCEPTIONAL WILLS
These wills are exempted from the formalities found under section 6(1) of
the DEWIPA. There are several categories of exceptional wills.

1. Foreign Wills
At the heart of foreign Wills lies the principle of territoriality. The
principle bars one country from legislating for another country or
applying its laws in the territory of another. The principle means that
the DEWIPA has set down requirements for making valid wills with
property in Malawi. Such valid wills must strictly satisfy the
requirements, that is,
- It must be written signed by the testator, signed in the
presence of two competent witnesses.
- It must be signed by those competent witnesses.
- The testator must have testamentary capacity [Banks v
Goodfellow test] and free will.

Section 6 (3) of the wills which creates three categories of foreign

Wills which are valid in Malawi; (a) wills made following the
requirements on S. 6(1) of the DEWIPA; (b) Wills made using the law
of where the Will was made; and (c)wills made using the law of
where the testator had his domicile when making the Will. These
were also laid down in In the estate of Pino Baretta. The overall
requirement is that the Will must be made in regard to property in
Malawi.

2. Privilege Wills
These Wills are made by testators who, during duty, face imminent
death and thus do not have the time to follow all the formalities of
will-making under section 6 (1). The law thus provides the
environment for such people to make wills. Read Re Wingham
[1949]. According section 6 (4) of the DEWIPA, there a few
requirements to note:

First of all, it is important to determine a “privileged testator.”

According to Section 6(4), this exemption only applies to two classes
of people in Malawi: Malawi Police Service and Malawi Defence
Forces professionals. In England, the law applies to those working
alongside soldiers and policemen which includes medical
professionals, and cooks.
 Secondly. The law demands that such a privileged testator must be
in or on actual service. This means the member of the Police or
Defense forces must be on actual service. This must be
distinguished from being on “active service.” In Re Wingham
[1948], the testator who wrote a privileged will was an officer
training as a pilot at a camp training school when he wrote the Will.
To answer the question if he was in “actual service”, Lord Denning
said:
… any soldier is… entitled to the privilege if he is actually
serving… in connection with military operations which are or
have been taking place or are believed to be imminent.
The person thus need not to be on the actual battlefield. A person
can claim the privilege even when he is just called for duties before
actual deployment. Mere suppression of insurrections is a matter
of actual service.

Last but not least, the extent of the privilege is key. All the
requirements of Section 6 (1) can be dealt away with such that the
will could be oral. For example, in Re Stable [1919], the Court
probated an oral will made by a soldier about to go the front in the
WWI who had only said “If I stop a bullet, everything of mine will be
yours.”
Oral wills can, however, be problematic where only one witness was
present. The will is also susceptible to fraud. The privileged will
becomes valid once it is executed and not enforce. This means that
even after retirement and one dies of old age, their privileged Will
will still be their last will.

The Centrality of Aminus Testandi when Making Wills

It is law that although the testator does not need to know that he or she is
making a privileged will, or even that he or she can make one, the
testator must intend that act to operate so far as is possible as a
testamentary disposition on his or her death.

Emerging Issues in the Law of Wills and Inheritance

a. Electronic wills
b. New Inheritable Property

Disposition by Secret Trusts

4. REVOCATION, ALTERATION, REVIVAL AND REPUBLICATION OF
WILLS
4.1.Revocation of Wills
Revocation is the formal act of cancelling or nullifying a will, a
process strictly regulated by Section 9 of the DEWIPA
4.1.1.Revocation by Destruction
To use such a method, two things are required: there must be a
destruction of the will, and the destruction must be accompanied
by an intention to revoke the destroyed will. As put in Cheese v
Lovejoy, all the destroying without the intention will not revoke a
will, nor all the intention without destroying.

4.1.1.1. Destroying the will

Section 9 does not specify what constitutes destroying. The
Wills Act 1837 suggests the following methods burning,
tearing, or otherwise destroying by the testator or
anyone in his presence. Thus, for Malawi, since most wills
are written on paper, the following methods could be fine:
tearing, burning, shredding or immersing it in water.

Cancelling a will by striking its contents through with a pen is

not act of destruction since there must be an effective
destruction.
Facts
The testator crossed the will with a pen and wrote on the
back of the document the words “all of these are revoked.”
He then crumpled the it into a ball and threw it among a heap
of waste paper in the corner of his room. His maid then
retrieved the crumpled paper and kept it in the testator’s
kitchen until his death seven years later.

The will was then submitted to court for probate. The validity
of the will was upheld by the Court of Appeal which ruled that
there was no effective destruction although there was an
intention to do so.
Cheese v Lovejoy

It is also important that the testator must complete his

intended act to make the destruction effective.
Facts
The testator got angry with one of the named beneficiaries in
the will such that he began to tear up the will with the
intention of revoking it. He had torn it to four pieces when
he was restrained by a passer-by and calmed down by the
 beneficiary’s apologies. He then put the pieces back
together, saying “it is a good job it is no worse.”

The will was probated and it was held that the Will had not
been revoked because he did complete the destruction
action.
Doe D Perkes v Perkes
The act of destruction does not need to act across the entire
will to be effective. A partial destruction will suffice so long as
the destroyed part is significant to make the will valid or not.
For example, cutting out the testator’s signature or those of
the witnesses shall render the will revoked by destruction.

Normally, the destruction must be done by the testator. Where

it is done by a third party, it must be done in the presence of
the testator and under his instruction.

4.1.1.2. Intention
To make the destruction effective to render the will revoked, it
must be done with an intention to revoke, or animus revocandi.
There will be no revocation if the testator lacked the capacity
when destroying the will. The capacity herein is the same as
that from Banks v Goodfellow necessary for making the will in
the first place.

There is a common law presumption that if the will goes

missing having last been in the testator’s possession and
cannot be produced at his death, then he must have revoked it
via destruction with the intention. The presumption can simply
be rebutted by evidence that the testator did not destroy the
will, but a third party did without the testator’s permission.

4.1.2.Revocation by Written Statement

Under this head, the testator can make a written document
and execute it like a will with an intention to revoke the will he
had made. The words execute like a will mean that the
document revoking the will must be signed by the testator in
the presence of two witnesses who shall also sign in the
presence of each other and the testator.

4.1.3.Revocation by subsequent Will

This is found in Section 9(1)(b) of the DEWIPA where a will is
revoked by the express, though not always, statement in a
subsequent will. Such clauses revoking the prior ones are known
 as revocation clauses where the testator revokes “all wills,
codicils, and other testamentary dispositions heretofore made by
me.” Where the new will leaves out property that was initially
found in the revoked will, the subsequent will only cover the new
property only and the testator will die partially testate.
The revocation clause can be limited in application where it
can revoke wills in relation to other property and leave other wills
unrevoked regarding other property. The revocation clause can
also be conditional where it does not become effective unless
a particular condition or event is fulfilled.

In the absence of a revocation clause in the subsequent will, the

revocation is implied by the words found in Section 9(2) which
says that where the testator left more than one will, the latest in
time shall prevail over the others to the extent of revocation.

4.1.4.Revocation by Subsequent Marriage

The third method of revocation by subsequent marriage. Section
10 of the DEWIPA says that a marriage entered into by the
testator after the making of a Will will render that Will revoked
unless the Will was made in contemplation of the spouse the
testator got married to. The reason for this is to protect and
benefit the new spouse who might suffer should the testator
forget to alter his will.

For this revocation method to be effective, the marriage must be

valid. A void marriage does not revoke a prior will because it is
treated at law as having never taken place at all.
4.1.5.Partial Revocation by divorce
Finally, section 10(2) of the DEWIPA provides for partial
revocation of a will due to divorce. If the testator divorces his or
her spouse, any gift made in his or her Will at the existence of
the marriage shall be revoked. This is because divorce matters
will take care of its matters of property distribution and partner
maintenance. In a similar fashion, if the testator appointed their
spouse executor or administrator or trustee, such an
appointment shall also be revoked.

4.2.Alteration of Wills
Due to the ambulatory nature of the will, meaning it follows the life
of the testator and only becomes effective at death, the testator is
allowed to alter [amend] the will. This could be done before or after
the will has already been executed. This could be done using a
 different document, the codicil, or making the changes on the same
face of the original document.

4.2.1. Alteration before execution of the will

Any established alterations made before execution are valid as if
they are part of the will during the time it shall be executed. Just
like making the will itself, the alterations must be done with an
intention.
There is a presumption that any alterations made in pencil are
purely deliberative and those in ink were intended by the
testator. There is also a rebuttable presumption that any
unattested alteration was made after the execution of will. This
can be rebutted where the will itself points to those alterations or
external evidence by the drafter showing that they were made
prior to the Will being executed.

4.2.2. Alteration after execution of the will

Any alterations after the will has been executed are guided by
section 9(3) of the DEWIPA. The section demands that any
obliterations or alterations made in the validly executed Will must
signed by the testator and by witnesses. If the obliterations are
illegible and cannot be spoken using extrinsic evidence, that
illegible part is revoked. Just like revocations, the obliteration
must be made with the intention to revoke the affected part and
accidental obliterations will not be effective.

4.3.Revival of Wills
The DEWIPA does not provide for situations where the testator,
having revoked his Will wished to revive it. It is possible to revive the
will depending on the method of revocation that you used. For
example, for those that were revoked by destroying, the only way to
revive the Will is to rewrite the Will. For those revoked using express
statements, a will can be revived by re-signing and re-attesting the
Will with the specific intention to revive it. It should also be possible
to revive will revoked by way of codicil.
5. TESTAMENTARY GIFTS AND THEIR FAILURE AND ADEMPTION
Recalling the ambulatory nature of the Will, this topic answers a few
significant questions including:
 What happens if property the subject of a gift is no longer available
at the testator’s death?
 What happens when the beneficiary predeceases the testator

5.1. Types of Testamentary Gifts

5.1.1. Legacies
This is a testamentary gift of all forms of property except real
property. These could be tangible or intangible for instance
causes of action, copyrights, trademarks, shares, bonds, money
orders and others. According to Walford v Walford [1912],
there are three types of legacies.
5.1.1.1. Specific legacies
This is a gift of severed or specified personal property whose
subject matter must be identified and distinguished from
anything of the same kind. Two requirements must be
satisfied: (a) the thing must be part of the testator’s estate at
death, and (b) it must be severable from the rest of the
testator’s estate. This was also stated in Bothamley v
Sherson [1875].
A good example of a specific legacy would be a gift of, “my
car, registration number CM 5857.”

5.1.1.2. General legacies

Such a gift does not refer to any specific part of the testator’s
estate and no gift is distinguishable from the other property of
the same kind. This gift does not need to be owned by the
testator at his death and it need not be an actual part of his
estate. Thus, it is upon the executors to realise that gift for the
mentioned beneficiary.
For example, if A gifts B a car, yet he had none at his death,
the executors must buy the car for B if the estate has enough
money. Jessel MR also explained this in Bothamley v
Sherson [1875].
Note that a gift of a particular thing will be a general legacy if
there is nothing to show that the thing already belonged to the
testator. Sufficient indications must be shown that the testator
referred to a particular thing, for example, shares in a
company that belonged to him.
 5.1.1.3. Demonstrative Legacies
A blend of a specific and general legacy, the demonstrative
legacy is a general legacy with a particular fund pointed out to
satisfy it. A classic example would be a sum of money to be
paid out from a specific bank account, i.e., to my son Z the
sum of MK2 million from my National Bank Account.

5.1.2. Devices
These are testamentary gifts of real property. Under Malawian
Law, this would refer to “private land” which is all land owned or
occupied under a freehold or leasehold title or a customary
estate registered as private land.

Devices can only be specific or general. A specific devise is a gift

of a particular and identifiable tract of real estate. It must also be
specific and a part of the testator’s estate at his death. A general
devise is a gift of real estate that has not been specifically
singled out or described.

5.1.3. Residuary Legacies and Devices

Recall that it is possible for a testator not to include other
property in his will, or for the legacy or device to fail where the
beneficiary dies first than the testator. This means that the
testator might die testate concerning other property and die
intestate regarding other property.
A properly drafted will therefore include residuary gifts of all the
residual property that remains after all the debts and liabilities
have been cleared and all legacies and devices discharged.

5.2. Ademption of Testamentary Gifts

Testamentary gifts may “adeem”. Adeem means to revoke or
withdraw a gift because the bequeathed assets no longer belong to
the testator at the time of their death. This occurs when the property
that was the subject of a specific legacy or device is sold, destroyed,
given away, or no longer exists at the time of the testator's death.
Ademption occurs by operation of the law regardless of the
testator’s intentions.

5.2.1.Ademption of specific legacies and devices

 Specific legacies and devices fail by ademption if the subject
matter has ceased to exist as part of the testator’s property at
his or her death. For instance, a testator might sell a house and a
car, subjects of a device and legacy respectively, causing the
legacy and the device to adeem. The would-be beneficiary would
not even be entitled to the proceeds of the sale of the house and
car even if those proceeds could be traced.
There can also be partial failure by ademption where a part of a
subject matter of a legacy or device has ceased to exist. For
example, where a part of the land has been sold or half a herd of
cattle has been sold.

5.2.2.Ademption of specific gifts speaking from death

Specific devices and legacies speak from the death of the
testator where he gifts houses or cars he owns to X at death
respectively. Such devices and legacies fail by ademption if the
testator has no asses that correspond with the described assets,
for instance, he has no house or cars at all.

5.2.3.Ademption where gifts change forms and not substance

The gift does not adeem where the form of the subject matter
changes but the substance of the property remains the same. It
is a question of fact, however, to ascertain if the property has
only changed form at the testator’s death from what it was
during the time the will was made. This is a common case in
shares as property of a testamentary gift.
5.2.4.Ademption by contract
5.2.5.Ademption by exercise after death of option to purchase
5.3. Lapsing of Testamentary Gifts
INTESTATE INHERITANCE
Total Intestacy
Partial Intestacy

Rules of Intestacy
a. Distribution of married intestates
a. Immediate family and dependents
i. Principles of Distribution
1. Protection from Hardship
a. In the Estate of Charles Chimkwende; Leticia
Chimkwende v Nancy Chimkwende Probate
Cause 757 of 2016
2. Household Belongings
3. Distributing the remainder property
b. Distribution of Estates of Unmarried and Childless Intestates
a. Dependents
i. Principles of distribution
1. Protection from hardships
c. Distribution of Estates of Unmarried Intestates with Children
a. Immediate family and dependents
i. Principles of distribution
1. Protection from hardships
d. Distribution of Estates of Polygamous Intestates
a. Section 17(2)
b. Section 17(3)
e. Distribution of Estates of Intestates Without Immediate
Family or Dependents
f. Bona Vacantia

Read the following cases

1. Masiye Chafukira v Salamu Probate Cause 505 of 2015
2. Josaya v Josaya [2023] MHC Fam 3
3. Estate of Kanyangale [2013] MHC Fam 38
4. Banuel v Kachikondo [2018] MWHC 108
5. Estate of Bvumbwe [2015] MWHC 504
6. Chakondwa v Chakondwa Land Cause No 754 of 2014
7. Masanje v Masanje [2022] MWHC Fam 1

Pensions and Life Insurance Benefits

Pensions and life insurance benefits do not form part of inheritable
property unless they were already payable at the time of death. Read In
the Estate of Gwazantini
SMALL ESTATES – PART XIII
ADMINISTRATION OF ESTATES
1. PROTECTION OF ESTATES PENDING GRANTS
2. GRANTS AND PERSONAL REPRESENTATIVES
1. Probate and Executors
2. Letters of Administration and Administrators
3.