IT is the duty of every man who has any property to leave, and any persons dependent upon him to whom he may leave it, to make a will, so that his intentions may be properly carried out after his death. And in a country like England, where the law regards property as belonging to the individual, to do with it as he wishes, and not, as in France, to the family, it is the natural desire of most men not to die intestate. In France, where it is impossible to settle property on persons in succession, and where the power of distributing one's money is confined by the law within very narrow limits, many people do not trouble about making a will. But with us a man generally makes his first will after his marriage, if he marries fairly young, and revises his intentions, according to lapse of time and change of circumstances, either by making codicils or, better still, by from time to time making a new will and revoking the old one. Now, the making of a will is not a matter to be taken in hand lightly ; and as a layman who tries to make his own will is almost sure to make some mistake, the best and safest and, in the end, the cheapest thing for him to do is to go to a solicitor and give him instruction accordingly.

Of course, where a man is moderately well off he would never think of dispensing with the help of his solicitor in so important a matter ; it is only in cases of small means where the temptation arises for the prospective testator to save money and make his will for himself, or get a friend to do so. There is more to be said for those who, living in remote country districts, find it difficult or, it may be in an emergency, impossible to get sound legal advice. On the whole, it may be said, in the present state of the law, at any rate, that unless the testator wishes to give all his property to one person, no will at all is often better than a homemade or amateur will ; for, as a rule, there is either some defect in the formalities required for its execution, or else the meaning is misty and ambiguous, and the will, when interpreted according to the recognised canons of construction, signally fails to carry out the intentions of the testator.

As, however, there will always be cases where a man desires to make his will, and cannot by reason of press of time or otherwise obtain the aid of a lawyer, a very concise model will be found at the end of this Chapter. It is intended rather as a guide to indicate the kind of will usually made by a married man with young children, than as a form to be adopted as it stands, by an intending testator, except in an emergency. Every will ought to be made with a view to the particular intentions of each individual testator, and the use of printed forms with blanks to be filled in is almost as much to be deprecated as the making of a purely home-made will by a person ignorant of law without any legal assistance. In both these cases it is not at all unlikely that the real intentions of the testator may never be carried out.

It may be useful to enumerate the essential formalities necessary to the validity of an English will:-

1. It must be in writing, but it may be on one or more than one piece of paper, so long as it is evident from a perusal of the contents that the whole ought to be read together as one document. It is better to have it, if not too long, all on one piece, however.
2. It must be signed at the foot by the testator or by some other person in his presence, and by his direction, as and for his last will in the presence of two witnesses, both present at the same time.
3. The two witnesses must afterwards, in the presence of the testator, subscribe their names to the will as having witnessed or, as it is called, " attested " it. A formal attestation clause (showing that all has been regularly done) is usual, but not absolutely necessary.
4. It is most important to see that no person who is interested under the will should be an attesting witness, for if one of the witnesses, or the husband or wife of a witness, is a beneficiary under the will, then he or she will forfeit his or her interest. But the attestation will remain valid.

There is nothing, however, to prevent an executor witnessing the will if he is not given anything by it. But as this is a contingency which seldom happens, it is best to call in some entirely independent persons to witness it. It is usually done by servants or solicitors' clerks.

A codicil is a supplementary will executed after the will, and with the object of adding something to, or otherwise altering the provisions of the will. To the extent only that it is repugnant to, or inconsistent with, the will it revokes it, in other respects it confirms it. The intention to revoke a gift given by the will must be quite clear. A codicil requires to be executed with exactly the same formalities as a will, but the witnesses need not be the same persons as those who witnessed the will.

Revocation.-There are four ways in which a will or codicil can be revoked, viz.

1. By the subsequent marriage of the testator or testatrix.
2. By a subsequent will or codicil impliedly or expressly revoking the original will or codicil.
3. By destruction of the will or codicil with intent to revoke it.
4. By a writing executed with the same formalities as a will, and declaring an intention to revoke the will or codicil.

The chief difference between a will and a codicil is that a will affects to dispose of the whole of the testator's property, while a codicil is only intended to dispose of part of it. Consequently, where there is a subsequent will, the presumption is that the testator intended to revoke the previous will, while in the case of a subsequent codicil there is no such presumption, for one would hardly be likely to supplement something one intended to destroy.

If a man, through change of circumstances, such as the death of any person, desires to revoke his will and make a new one, he should be particular never to revoke the old will until he has executed the new one.

If a man who is not a lawyer finds himself obliged to make his own will, or unable to obtain the services of a lawyer, he should be careful to make the meaning perfectly plain and straightforward, so as to be easily understood by any common sense person. For the great danger of an amateur will - that it should not carry out the testator's intention - generally arises from the wrong use of technical words by a person who does not properly understand their effect. The use of technical words in wills is quite unnecessary, unlike the case of a deed, and in the hands of a layman, even dangerous. A lawyer, however, can understand a will much better for its being expressed in technical language, properly used. Most of the difficulties, however, which arise in the construction of wills by the Court are caused by the happening of some contingency which has not been foreseen and provided for by the testator, and, since extrinsic evidence is not allowed to be given as to a testator's real intentions, it often happens that they are frustrated, because the Court can only look at the will, and cannot say what the testator would have intended upon the occurrence of an event, the possibility of which he never contemplated.

There are endless rules and canons of construction to be deduced from innumerable cases, but it would serve no useful purpose to enter upon a discussion of them here. A few, however, of the simplest principles may be mentioned, the reader bearing in mind that there are whole classes of exceptions to nearly every rule. The first is that the words of the will will have their most obvious meaning given to them. The Court will do its utmost to carry out the intentions of the testator as expressed in the whole will. Where conflicting technical language is used, an endeavour will be made to find the general intention, and the fullest effect given to it, when found.

No extrinsic evidence of the testator's intentions, as for example, words spoken by him at the time the will was made, or evidence to explain away ambiguities appearing upon the face of the will, is allowed to be given.

Wills speak from the date of the testator's death, and not from the date of execution. That is to say, when reading a will one must imagine it to have been executed the moment before the testator expired. So that if there is a gift to a person in the will without further words, and that person dies before the testator, his (the beneficiary's) estate will take nothing ; it is as if the gift had been struck out of the will, and the property given is said to " lapse." There is one most important exception to this rule, however. The issue of a deceased child of the testator represent their parent, and take between them the share that he would have taken if he had survived the testator. There have been two or three very curious cases where two persons, each of whom had made his will in the other's favour, have sailed in the same ship, and perished together by shipwreck, so that it became impossible to prove which died first, and consequently how the property should devolve.

Another rule is that devises and bequests which have lapsed do not remain undisposed of, but fall into the general residuary estate, and pass with it. It may here be mentioned that the proper word to describe a gift of real property is " devise," of personal property " bequest," or " legacy." The corresponding verbs are " devise " and " bequeath." A gift of property to a person without any words qualifying the interest or estate taken by that person gives the whole interest which the testator had in the property, or was capable of giving. This is the chief respect in which a will differs from a deed as regards interests in land, the latter, unlike the former, requiring technical "words of limitation," e.g., " in fee simple," or " to A B and his heirs," to show the interest taken.

There are three exceptions to the general rule that legacies are not payable until a year from the testator's death, and that consequently no interest is charged until then. Interest is payable from the testator's death on legacies which are either:

1. in satisfaction of a debt,
2. to children for which they are portions, or
3. charged on land.

Satisfaction.-If a legacy be given to a creditor, which in amount is equal to or greater than his debt, it will be considered to have been given in satisfaction of the debt, unless there is something in the will to indicate a contrary intention. If, however, the debt is contracted after the date of the will, or if there is any express direction for the payment of debts in the will, this doctrine of " satisfaction," as it is called, will not apply.

Another example of "satisfaction" arises in connection with gifts to children. Where a parent has paid, or undertaken to pay, a sum of money to a child as a " portion," for his or her advancement in life, and then by a will executed before the property is made over to him, leaves a similar or larger sum to the child, the latter will not be allowed to take both, but only one gift, unless it can be proved that the testator intended the second gift to be in addition to the other. This is called the "rule against double portions," and is intended to prevent one child getting more than its fair share of its parent's property to the exclusion of the others.

Children.-The word " children " in a will means " legitimate children " ; therefore if a gift to an illegitimate child is intended, the child should be expressly named, or otherwise sufficiently identified, otherwise the gift will fail altogether. It should be remembered that if a man goes through the ceremony of marriage with his deceased wife's sister, their children will be illegitimate, and will take nothing under a will giving property, say, to " my children in equal shares," even if the testator has at the time he made the will no legitimate children. For he might marry at some future time, and have legitimate children, and these would take under the gift to " children." Under such circumstances a man should be very careful to have good legal advice when making his will, or grave injustice may be done, and much suffering caused, as it has been many times in the past.

Short Form of Will, by a Married Man, providing for his Wife and Children.

This is the last will and testament of. me, A B, of, &c. I appoint C, of, &c., and D, of, &c. (hereinafter called my trustees), to be the executors and trustees of this my will, and guardians of my infant children. I bequeath to my wife, E B, all my furniture and effects at my usual place of residence at my death, except money and securities for money ; and I also bequeath to her to be paid to her within one month after my death. I bequeath to each of my executors who shall prove this my will �_______. I devise and bequeath all my real and personal estate not hereby otherwise disposed of unto my trustees upon trust, to sell, call in, and collect the same ; and out of the moneys arising thereby and all other moneys forming part of my estate, to pay my funeral and testamentary expenses, debts, and legacies, and to invest the residue of such moneys in any of the investments for the time being authorised by law for the investment of trust moneys, with power to vary such investments. And to pay the income thereof to my said wife during her life, and after her death to hold the same and the income thereof in trust for all my children, who, being sons, shall attain the age of 21 years, or who, being daughters, shall attain that age, or marry, and if more than one, in equal shares. And if there shall be only one such child, the whole to be held in trust for that child. Provided that my trustees may, after the death of my said wife, at their discretion, or during her life with her consent in writing, raise any part or parts not exceeding one-half part of the then expectant presumptive or vested share of any child, and apply the same for his or her advancement or benefit. In Witness whereof I, the said A B, have to this my will set my hand this ____ day of _____ 18___.

[Signature of Testator.]

[Signatures and descriptions of Witnesses.]

As a rule, when a man of comparatively small means marries there is no settlement, and he at once makes a short will in favour of his wife solely and absolutely. The following would be sufficient for that purpose.

"This is the last will of me, A B, of &c. I hereby devise and bequeath all my property, real and personal, to my wife, E B, absolutely, and appoint her sole executrix of this my will. In witness, &c.,

As soon as any children are born, he should make a fresh will of the type shown above. Any specific gifts to friends or relatives should come just after the bequest to executors. This will ought to last until the children are all of age, when it is generally desirable to make another will, under which the contingency of a child dying, and himself or herself leaving young children, may be provided for. Various other circumstances may arise, calling for the making of a new will, for a will should never be allowed to get out of date.

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