ating them by will; estates pur autre vie, whether there is or is not a special occupant thereof, and of whatever tenure the same may be, and whether they are corporeal or incorporeal hereditaments; contingent, executory, or other future estates or interests, and rights of entry; and, generally, all real and personal estate to which the testator is entitled at the time of his death, although he may have become entitled to the same after the execution of the will with regard to copyholds, however, the devisee of them must pay the proper fines before he can be admitted, and the will must be entered on the court rolls.

By the old law, an interest which was contingent at the time of the making of the will could not be devised if the testator was not then ascertained as the person in whom, or in whose heirs, it must vest, if it vest at all. And for the will to pass a legal estate, it was necessary that the testator should be seised at the time of his death, as well as at the date of the will; while a devise only operated upon such real estate as he possessed at the date of the will, and freehold lands purchased afterwards would not pass. A term of years, however, purchased by a testator after the execution of his will would pass under it. Again, by the old law, a joint tenant could not devise his share, even though he survived his co-tenant, if his will was made before the death of the latter. And even though the joint tenancy was severed, a will made before severance would not operate to pass a share.

The provisions of the Wills Act are so comprehensive that it may safely be said, that it enables a person to dispose by will of every description of property. Of course, it will not enable a tenant in tail to dispose of his estate without previously disentailing it, as this is an estate which would not, if undisposed of, go to his heirat-law, for it only goes to the heir of his body, and that not by law, but by the effect of the original grant creating the estate tail. Nor does the act enable a joint tenant to make a devise of his share, so as to defeat the jus accrescendi, or right of survivorship, belonging to his co-tenant.

II. Who may make a Will.

Infants. First of all, an infant cannot do so. (Sect. 7.) Query, however, if this section prevents a soldier on active service from

making a will, even though a minor, if the will deal with personalty only. (See Re Farquhar.)

Married Women.-The act provided that a married woman should only be able to make such wills as she might have made before the passing of the act; but this has been materially qualified by the recent Married Women's Property Acts. The result of the Act of 1882 is, that the will of a married woman, dying after 1882, is as valid as if she were a feme sole; but if executed during coverture, it will only pass such property as was hers for her separate use during coverture, and not property which comes to her after the coverture has determined. (See Re Price; Stafford v. Stafford.) As to the wills of those who have died before that date, as to real estate, they could dispose of it by will, if the husband was banished or transported for life; if a judicial separation or a protection order had been obtained; if the will was made in execution of a power of appointment, or if the land belonged to her for her separate use. (Taylor v. Meads.) She could dispose of her personalty under the same circumstances, and further, she might make a will thereof, if her husband consented to the particular will, survived her, and gave his consent to the probate thereof when it was proved. Further, she could by will bequeath property vested in her as executrix. (See Willock v. Noble.)

Insane Persons.-If a person has been found of unsound mind by inquisition, the presumption is, that he continues in that state of mind till his death, so that the will of such a person was not admitted to probate, though he recovered his reason before death. (Grimandi v. Draper.) But if it be shown that the will was made during a lucid interval, it will be good; and where a will was actually executed in a lunatic asylum, it was held valid, it having been established that it was made during a lucid interval. (Nicholls v. Binns.) There are many cases on the question of how far insanity, if it be only partial, as where it consists in delusions on particular points only, the mind being sound upon other points, affects the testamentary capacity. A mere capricious or eccentric disposition by will does not argue that the testator was insane, and if the will is the true exposition of a man's real mind, effect will be given to it, however eccentric it may appear, and however

eccentric the testator may have been in his general habits of life. (See Boughton v. Knight.) But if, for instance, a testator should be under the delusion that he is a member of the royal family, and should leave his property to his wife for life, and after her death to members of the royal family, to the exclusion of his relations, the will would be invalid, even with regard to the life interest given to the wife. (See Smee v. Corporation of Brighton.)

Mere eccentricity will not invalidate a will, nor will moral insanity or moral perversion of feelings; there must be at least intellectual insanity, the test of which is delusion. (Freer v. Peacocke.) A will which is rational in itself is strong evidence of the testator's sanity when making it (Cartwright v. Cartwright), and the onus of proof of insanity lies on him who wishes to upset a will on this ground. (See Groom v. Thomas.) Again, though it is clear that if a will is made under the influence of a delusion it is void, as the testator's mind is unsound, yet a delusion may precede or succeed the will without affecting its validity. (Jones v. Goodricht.) For, if the insane delusion is on a subject which does not affect the clearness of the testator's mind with regard to business matters, his property, and other matters coming within the scope of his will, it will not incapacitate the person whom it possesses from making a valid will. If there is a total absence of connexion between the delusion and the will, the will will be good. (Banks v. Goodfellow.)

The will of a drunkard stands on much the same footing as that of a lunatic. If the intoxication renders the brain incapable of discharging its proper functions, a will executed during a fit of intoxication will not stand. (See Wheeler v. Alderson.)

Aged Persons.-A person may also be incapacitated from making a will by old age, if it is so extreme, or death is so near, as to prevent the mental faculties retaining sufficient power to comprehend the act about to be done. (Prinsep v. Sombre.)

Idiots, &c.-The will of an idiot is, of course, void. So apparently also is the will of one deaf, dumb and blind. A person born deaf and dumb cannot make a will unless he clearly understands what a will is, and evinces his wish to make one. (See Dickenson v. Blinett.) If he can write and read there will be but little difficulty about the

matter; but if he can do neither it will be necessary, before the will is admitted to probate, to show how he communicated his wishes and how he signified his knowledge and approval of the contents of the will. (Fairclough v. F., Re Owston.)

Blind Persons.-As to a blind person's will, it must be shown that it was read over to him, or, at least, that he knew and approved of its contents. (Moore v. Paine. See also Newton v. Best.) And, by the Probate Rules (Rule 71), before probate of the will of a blind or obviously illiterate or ignorant person will be granted, satisfactory evidence must be given that the will was read over to the testator before execution, or otherwise that he had a knowledge of its contents.

Felons.-Felons can now, owing to the provisions of the Felony Act, 1870 (33 & 34 Vict. c. 23), make a will; for upon their death their property reverts, and a will only speaks from the testator's death.

Persons under undue Influence.-But even when a person is under no personal incapacity, his will may be invalidated from the circumstance that he was under undue influence at the time of making it. (Mountain v. Bennet.) But it will never be presumed that such influence has been exercised, and it must be proved to have been used. (Boyse v. Rossborough.) Undue influence does not bear the same meaning in its legal sense as it does in its popular sense; for mere bad companionship, or bad example, may influence a man in making his will, but it will not be sufficient to invalidate it. In its legal sense, it means something in the nature of force or fear destroying free agency. (See Williams v. Soude.) In Boyse v. Rossborough it was said that undue influence was an influence which could be described to have caused the execution of a paper pretending to express the testator's mind, but which did not really express that mind, but expressed something else which he did not mean. There must be coercion or fraud. It is not necessary to show that actual violence has been used, or even threatened; nor is it necessary to show positive fraud. But mere persuasion, unless it virtually amount to the effect of force or fear, will not amount to undue influence. (Dickenson v. Moss.) Thus, imaginary terrors may be sufficient to deprive the testator of free agency, and con

trivances producing false impressions may be equivalent to positive fraud. In considering whether a threat is sufficient to amount to undue influence, the quality of the threats, and the person threatened and making the threat, and other circumstances, will be taken into consideration. (See Nelson v. Oldfield.) Generally, the question of what amounts to undue influence is a question of fact in each particular case, and no general rules can be laid down on the subject. The great question is, of course, Was the will the result of the undue influence, or was it the voluntary act of the testator? (See Kinderside v. Hanson, and on the subject generally, the leading case of Huguenin v. Basley.) Mere natural influence, such as that possessed by a relation or a friend, may apparently be used to obtain a benefit by will. (Parfitt v. Lawless.)

III. The Formalities made essential by Law to a Valid Will. The Execution and Attestation of Wills.-Previous to the Wills Act, 1837, while wills of personal estate, if attended with certain formalities, might be made by word of mouth, and, if reduced into writing, did not require any witnesses, wills of real estate had, under the Statute of Frauds, to be in writing, and to be signed by the testator in the presence of three or four credible witnesses. Now, however, by sect. 9 of the Wills Act, both wills of real and personal property must be executed with the same formalities. These are as follows:-(a) The will must be in writing. (b) The testator must sign it, or someone must sign it for him in his presence and by his direction. (c) The signature must be made, or acknowledged, by him in the presence of two witnesses. (d) The signature must be at the foot or end of the will. (e) The witnesses must sign in the presence of the testator; but no form of attestation is necessary, nor need the witnesses sign in the presence of each other. (Re Allen.)

(a) The will must be in writing. There is an exception to this rule created by sect. 11, which provides that any soldier, being in actual military service, or any mariner or seaman, being at sea, may dispose of his personal estate as he might have done before the act. The result is, that such persons can still make a nuncupative will, or will by word of mouth. "Actual military service" means on an expedition, and a soldier in barracks, whether at home