Discuss the impact (if any) of the Wills Act 1837 upon the Statute of Frauds Act 1677.

What are their similarities and/or differences?

Introduction

Generally, statutes are passed or enacted to address by fixing mischief. The Statute of Frauds Act
1677 and the Wills Act 1837 are one of those which were enacted to prevent the perpetration of
fraud in the course of transferring properties weather by will or by inter vivous declarations.

Impact of the Wills Act 1837 upon the Statute of Fraud Act 1677

The Statute of Frauds Act 1677 was enacted to prevent fraud by requiring that certain types of
contracts, wills and grants and assignment or surrender of leases or interests in real properties
must be in writing and signed by the party against whom it is to be enforced. The purpose of the
Statute of Frauds Act 1677 according to Lord Hoffmann in Actionstrength Ltd v International
Glass Engineering SPA [2003] 2 AC 541, was precisely “to avoid the need to decide which side
was telling the truth about whether or not an oral promise had been made and exactly what had
been promised.” Parliament must have decided, thought Lord Hoffmann that there had been “too
many cases in which the wrong side had been believed.”

Lord Bingham in the same case above said that section 4 of the Statute of Frauds Act 1677 was
enacted “to address a mischief facilitated, it seems, by the procedural deficiencies of the day...the
calling of perjured evidence to prove spurious agreement said to have been made orally. The
solution applied to the five classes of contracts specified in section 4 was to require, as a
condition of enforceability, some written memorandum or note of the agreement signed by the
party to be charged under the agreement or his authorized agent.”

It is very clear from both Lords Hoffmann and Bingham that the objective of Parliament in
enacting the above act was to prevent the commission of fraud in some transfer of properties. In
a similar vein, the Wills Act 1837 was also enacted to mitigate against the number of false claims
and frauds being perpetrated on the estates of a deceased testator, thereby requiring that
dispositions of properties by will (save for section 11 of the Wills Act 1837) must be in writing
signed by the testator in the presence of witnesses present at the sometime.

In effect therefore, the Wills Act 1837 being the last in sequence to the Statute of Frauds Act
1677 has an impact upon the latter act by complementing its requirements of writing, signature
and witnesses to prevent the commission of fraud when properties are being transferred. The
Wills Act 1837 does repeal all of the sections in the Statute of Frauds Act 1677 relating to wills
thereby rendering it nugatory for testamentary disposition. The Wills Act 1837 makes uniform
provisions regarding wills.
 However, the WA reduces the least number of witnesses from three to two in order to make a
will valid. This in effect reduces the burden on testators when executing their wills.

The Wills Act 1837 does have also another impact upon the Statute of Fraud Act 1677 by being
specific as to where the signatures must be positioned.

Differences between the wills act and the statute of fraud act

The Wills Act 1837 is specific as to where the signatures are to be. Section 9 provides that for a
will to be valid, it has to be signed at the end or foot of the will.

Within section 5 of the Statute of Frauds Act 1677, the number of witnesses required for a valid
disposition of any real property is three or four who are to be present at the same time when the
testator or his authorized agent signs the will. In section 9 of the Wills Act 1837, the required
number of witnesses is two or more who are to be present at the same time when the testator or
his authorized agent signs the will.

The 1677 act does not only provide for the inter vivous transfer of properties, it does also provide
for the disposition of properties by will, whereas the Wills Act 1837 is much more focused in
providing for testate succession.

Another difference between the Wills Act and the Statute of Frauds Act is the positioning of the
signature. Section 4 of the Statute of Frauds Act does not specifically state where the signature
should be placed. All it does was to provide that the document should be signed. The Wills Act
on the other hand makes specific provision for that. In section 9 of the Wills Act 1837, it is
required that the signature of the testator and the witnesses must be at the end or foot of the will.
This is a strict requirement and the courts have denied probate in Smith v Bryer (1848) where the
signature of the testator was on another page and not at the foot or end of the will. The foot or
end of the will must be understood to mean just immediately after the last clause of the will.
Similar decision was taken in Re Stalman (1931) 145 LT 339.

Even though section 6 of the statute of frauds act 1677 provides for revocation of documents by
other means, it does not provide for revocation by marriage. Section 18 of the Wills Act 1837
however does provide that the marriage of a testator can revoke his will. This means that even
where the testator’s marriage was voidable as was held in Re Robert (1978) 3 All ER 225.

Similarities

The two acts require that the transfer or disposition of real property must be in writing. The
courts have held that any form of writing will be accepted. A partly ink written will and a partly
typed written will is also accepted. However, where there is writing in ink and pencil, the courts
may not grant probate until evidence is shown that the writing in pencil is intended to be part of
the will as was held in The Goods of Adam1872) LR 2 P 367. Language to write cannot be a
barrier if the formalities are adhered to as was held in Whitening v Turner (1903). A written
instruction to a solicitor which have been duly witnessed was held to be valid as in Re Meynell
(1949) WN 273.

Section 11 of the Wills Act 1837 and section 22 of the Statute of Frauds Act 1677 makes similar
provisions for the disposition of personal properties orally by seamen, mariners and military
personnel that are in actual military service. The courts have held that in order for a person to fall
within this group of persons, he must have been in an actual military service. Actual military
service has been held by Lord Denning in Re Wingham, a situation where the soldier is serving
with the armed forces in connection with military operations which are or have been taking place
or are believed to be imminent. In this case it was held that an RAF officer training as a pilot in
Canada was in actual military service since he was liable to at any time to be posted to an area
where he would become involved in active warfare.

Both acts make provision for situations where the documents may have an interlineations,
obliteration and alteration. If any of these happens before or after execution of the document and
the maker of the document is desirous to validate same, he should adhere to the formalities. That
is to say where for example a will has this kind of defect, the testator must comply with the
witnessing and signature requirement as required in section 9 of the Wills Act 1837.