1.

Nickesha wishes to “put her affairs in order” but is uncertain as to the purpose and effect
of a will and how a will differs from other inter vivos dispositions.

Define will
Types of wills
Purpose of a will
Effect of a will
Define inter vivos dispositions
How it is different for an inter vivos disposition

According to Mellows on Succession, a will is defined as "a revocable declaration made in the
prescribed form of the intention of the person making it of the matters which he wishes to take
effect after his death until which time it is revocable" Essentially, a will generally refers to the
document/s in which a person expresses their intention in respect of the matters which they wish
to take effect on or after their death. A will is one on a person’s wished or volition. If a person
was forced or under pressure to make a will, then that will is not valid. A will must be
manifested in writing however there is an exception for Privilege Wills (in active duty such a
soldiers, marine, etc.
Testate and intestate succession are referred to as the twin regimes/ two branches in place to
regulate the law of succession. The law of testate succession regulates the devotion and
distribution of the property of a person who dies having made a will disposing of it; and the law
of intestate succession regulates the devolution and distribution of the undisposed of property of
a deceased person. When a person dies testate, his/her Personal Representative (Executor) will
be required to apply for and obtain a grant of Probate which merely validates his Will and allows
the Personal Representative to carry out or effectuate the wishes of the testator e.g. distributing
the property according to the wishes of the testator.
However, where a person has died intestate, his/her personal representative (Administrator/
Administratrix) will apply for Letters of Administration to deal with his/her estate, which may
sometimes be a bit complex, hence the importance of making a Will. The Wills Act is used in
order to determine who is the administrator/ rix. Their estate is distributed by the laws of
intestacy as set out in the Civil Law of Guyana Act Cap 6:01. S. 6

The aforesaid definitions indicate that there are at least six characteristics of a will. These
include:
a. the scope of a will is not confined to dispositions of property- may be for some other
reason such as to appoint a guardian or trustee etc.
b. it is always revocable- can be altered at any time before the death of the person
c. it takes effect on death- has no legal effect until the person dies
d. is ambulatory (can be changed or revoked as long as the person is alive)- inchoate, has
not crystallized as yet, has not been effective/ materialized as yet
e. a will operates only as a declaration of intention; and
f. it must usually be in prescribed form- formalities of a will
a. The scope of the will is not confined to dispositions of property.
Although the principal aim in making a will is to dispose of property, a will may also be made
for the following reasons to appoint executors and/or trustees, to appoint special personal
representatives, to appoint guardians of infants, to confer special powers on executors and/or
trustees, to give directions as to burial or cremation, sanction the use of the body or parts thereof
for therapeutic or educational use, to exercise a testamentary power of appointment given to
testator under previous will or settlement and which is exercisable by deed or will, to revoke
wills and/or codicils and to exclude various equitable rules. Re Skeats, Thain v Gibbs (1936) Ch
683

b. The will is always revocable.

A Will is always revokable flows for the fact that a Will only takes effect on death. A Will may
at any time be revoked by the testator unless he ceases to be of sound mind and thereby loses his
testamentary capacity. Even in cases where there is a contract not to revoke a will, the will itself
may be revoked although an action for damages for breach of contract may lie. As in the case of
joint or mutual Wills. In Vynior's Case1, it was stated that a Will contained a declaration that it
was not revocable. Court held that declaration invalid. A will is revocable until the death of the
testator unless he is not of sound mind.

In this case Synge v Synge2, the Defendant before, and as an inducement to, his marriage with plaintiff
promised in writing, as part of the terms of the marriage, to leave a house and land to her for her life. The Plaintiff
consented to the terms proposed, and the marriage took place; but the defendant subsequently conveyed the property
by deed to a third person. The court held that as the defendant had put it out of his power to perform the contract
there had been a breach, in respect of which plaintiff had an immediate right of action to recover damages, and the
measure of such damages was the value of the possible life estate to which plaintiff would be entitled if she survived
defendant; and where a proposal in writing to leave property by will, made to induce a marriage, is accepted, and the
marriage takes place on the faith of it, if the proposal relates to a defined piece of real property the court has power
to decree a conveyance of that property after the death of the person making the proposal against all who claim
under him as volunteers. So the testator’s will was revoked even after his death.

Re Marsland,3 In a deed the testator covenanted that he would ‘not revoke the will or alter the same so far as
regards the gift of the half share of his estate to his wife and children as aforesaid.’ The testator’s first wife died and
he remarried, thereby revoking his will under Will Acts 1837 (c 36) s 18: the court held that the covenant by the
testator not to revoke his will was, on its true construction, confined to acts of revocation performed as such
under Wills Act 1837 (c 26) s 20, and did not extend to revocation imposed by section 18, whether the testator
wished it or not.

c. Will takes effect on death of testator.

A will takes effect on death only so that neither the beneficiaries nor the executors have any
interest whatever in the testator’s estate until his death. Accordingly, if a beneficiary dies

1
1609 8 Co Rep 816
2
1894 1 QB 466
3
1939 3 AER 148 (CA)
between the time when the will is made and the testator’s death, his estate will generally derive
no benefit under the will. (Exception in s. 32-33 in the Wills Act)
Bullock v Bennett 1855 7 DeGM &G 283, Re Currie's Settlement 1910 Ch 329., A.G.Jones
and Bartlett 1817 3 Price 368, at p 391.

d. The will is ambulatory.

The Will has no crystallized yet, it is movable or changeable. A will speaks from the death of the
testator. Therefore it can be changed at any time before death and is capable of dealing with
property acquired by the testator after the date on which it was made provided it was owned by
the testator at his death.

e. The will is merely a declaration of the testator’s intention.

A will is said to be merely a declaration of the testator’s intention therefore the testator is still
free to dispose of the property inter vivos; and the executor has the authority to, and may sell the
property during the course of administering the estate upon the death of the testator.

Bullock v Bennett 1855 7 DR GM & G 283

A.G.Jones and Bartlett 1817 3 Price 368, at p 391.

f. Must be in prescribed form.

In all cases other than Privileged Wills, a will must be in writing, signed at its foot or end by the
testator or by some other person in his presence and by his directions and must be witnessed by
at least two other persons
Privileged Will are wills made by persons in active duty and these wills can be made verbally.

Section 4 Wills Act Guyana Cap 12:02

The types of Wills include: Standard will, which is the usual will made by one person alone and
is intended to take effect unconditionally upon his death. Variations of standard will which
may be classified as conditional, joint and mutual Wills. Conditional Will is one made with the
intention that it shall take effect only upon the happening of a specified event. Conditions have to
satisfied for the Will to take effect.
Re Thomas 1939 2 AER 567, Re Vines 1910 P 147, Re Govier 1950 P 237, In the Goods of
Hugo 1877 2 PD 73, In the Goods of Spratt 897 P 23, 32, Corbett v Newey 1998 Ch 57; The
Times 3 May, 1994, Re Parsons v Lanoe 1748 1 Ves Sen 187

Note that the court in interpreting a conditional will looks at the language of the document, the
circumstances surrounding the making of the will and the extrinsic evidence to determine
whether the will is in fact conditional. Joint Wills where two or more persons incorporate their
testamentary wishes in a single document and execute it in accordance with the statutory
requirements as to formalities those persons are said to have made joint Wills.
In the goods of Piazzi- Smyth, L. R. 1898, 1 P. 7.
In the Estate of Heys 111 L. T. Rep. 941;(1914) P. 192)
Mutual Wills which are made by two or more persons in one or two documents usually in
substantially the same terms and conferring reciprocal benefits following an agreement between
them to make such Wills and not to revoke them without the consent of the other.
(a) Privileged Wills (Soldiers/Mariners)
Section 11 Wills Act UK 1837, Section 6 Civil Law of Guyana Act Cap 6:01
This type of will is a will made without any formal requirements. It may be completely oral or it
may be completely written and if written it need not be signed or witnessed in the usual manner.
Note however, that it is still necessary to show an intention to make a will.
While formalities are generally thought necessary for making a will, it is realised that in certain
exceptional circumstances a person should be able to make a will without formality.
This class of Wills is available to a limited class of person in certain exceptional circumstances
such as persons in grave danger which accentuates the desire to make a will and he/she is
deprived of the normal means of consultation before making a will. Examples of such persons
are members of the Armed Forces in actual military service Mariners or seaman at sea
Re Stable [1919] P. 7
''If I stop a bullet, everything of mine will be yours''
Re Wingham [1949] P. 187, per Denning L.J., Re Gibson [1949] 2 All E.R. 90, Rapley's
Estate, Re; Rapley v Rapley [1983] 3 All ER 248, In the Estate of; Newland, In the goods of
Newland, [1952] P. 71; [1952] 1 All E.R. 841; [1952] 1 Lloyd's Rep. 280; [1952] 1 T.L.R. 896
A codicil is a mini Will or an amended Will. A codicil is a testamentary document which
modifies or varies the terms of the will to which it relates. The law and practice relating to the
execution and attestation of codicils is the same as that which is applicable to wills. A codicil is
proved at the same time as the will to which it refers and one grant (grant of probate that the
executor gets) issues in respect of all documents. A Will is proved when all the documents are
filed in the HC.

Gifts inter vivos

A will is distinguishable from a gift inter vivos with respect to the time when it takes effect as
well as to the formalities required.
As regards time, the general rule is that a gift inter vivos is effective at the time of the execution
of the deed whereas a gift by will takes effect only on the death of the testator, although a future
interest in property could also be conferred by inter vivos gift, so that the end product may be
similar to a gift by will (see revocable settlement inter vivos).
As regards formalities, these are different. In the case of gift by will, the only formalities
required are that it must be in writing, there must be the signature of the testator and the
attestation by at least two witnesses. In the case of gifts inter vivos the formalities vary and will
be dependent upon the type of property which is the subject of the gift. A gift of land for
example must be by deed, a gift of shares in a company must be by transfer and registration.

In practice little difficulty is experience in determining whether a document is intended to

operate as a will or to effect a gift inter vivos. It should be noted however that where an attempt
was made to create a gift inter vivos but that attempt has been ineffective the document by which
that attempt was made will not be regarded as a will even if it refers to the person's death. This is
so since a person must intend a document to take effect on death if that document is to be
admitted as a will.
Milnes v Foden 1890 5 P &D 105, Sir Hannen P stated that if there is proof, either in the paper
itself or from clear evidence dehors, first, that it was the intention of the writer of the paper to
convey the benefits by the instrument which would be conveyed by it if considered as a will;
secondly, that death was the event that was to give effect to it, then whatever may be its form it
may be admitted to probate as testamentary. It is not necessary that testator should intend to
perform or be aware that he has performed a testamentary act.
Dillon v Coppin 1839 4 My & Cr 647
A revocable settlement inter vivos is an instrument which creates a present interest in property
but it is revokable. A will confers only an interest upon the death of the testator. It is not a will.
Donatio mortis causa is a revocable gift by a person made in contemplation of his/her impending
death and conditional upon that death. Gift is conditional on the person’s death. It is a type of gift
which is midway between a gift inter vivos and gift by will. It consists of a gift made by a person
during his lifetime with the intention that it will take effect only on that person’s death and while
the gift is conditional upon their death, once that condition has been fulfilled the gift takes effect
retroactively from the date it was made. It follows therefore that the donor must have intended
that the gift should be absolute upon the condition being fulfilled. If the donor dies as
contemplated the gift becomes absolute. If he does not the property reverts to the donor.
Staniland v Willott (1852)
Beaumont, Beaumont v Ewbank 1902 1 Ch 889, 892
A valid Donatio mortis causa must fulfill the following three conditions: the gift must be made
in contemplation of the donor's death, the donor must intend it to be conditional upon his/her
death, but subject thereto to be unconditional; and the donor must have parted with dominion
over the asset.
Cain v Moon [1896] 2 QB 283 - Lord Russell CJ