Directory_and_Chronicle_1886 — Page 786

Interpretation of "the proper, Officer."

Examination of* will as to mode of execution.

Examination of tation Be.

Proof of execu- on according o Acts of Farliament.

76

RULES OF SUPREME COURT

A list of the grants of probate and administration made by it up to the last preceding first day of January and first day of July respectively, and not included in any previous list.

And also, a copy, certified by the Provincial Court to be a correct copy, of every will to which any such probate or administration relates.

II.-Probate and Administration with Will annexed.

202. In the following rules respecting probate and administration the expression "the proper officer" means, as to the Provinces, the Consul- General, Consul, or Vice-Consul holding and forming a Court; as to the Supreme Court, such one of the officers attached thereto as for the time being acts in matters of probate and administration by the authority and under the direction of the Judge.

203. On receiving an application for probate or for administration with will annexed, the proper officer must inspect the will, and see whether it appears to be signed by the testator, or by some other person in his presence and by his direction, and subscribed by two witnesses, according to the provisions of the Acts of Parliament, 7 Will. 4, & 1 Vict. c. 26 sect. 9,* and 15 & 16 Vict. c. 24 sect. 1,† and in no case may he proceed further if the will does not appear to be so signed and subscribed.

204. If the will appears to be signed by or for the testator, and subscribed by two witnesses, the officer must then refer to the attestation clause (if any), and consider whether the wording thereof shows the will to have been in fact executed in accordance with the provisions of the said Acts.

205. If there is no attestation clause to the will,-or if the attestation clause thereto is insufficient, the officer must require an affidavit from at least one of the subscribing witnesses, if either of them is living, to prove that the will was in fact executed in accordance with the provisions of the said Acts.

The affidavit must be engrossed and form part of the probate, so that the probate may be a complete document on the face of it.

If on perusal of the affidavit it appears that the will was not in fact executed in accordance with the provisions of the said Acts, the officer must refuse probate.

If on perusal of the affidavit it appears doubtful whether or not the will was in fact executed in accordance with the provisions of the said Acts, the officer must lay a statement of the matter before the Judge of the Supreme Court for his directions.

"And be it further enacted, that no will shall be valid unless it shall be in writing and executed in man- ner hereinafter mentioned; (that is to say), It shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

+ "Whereas by an Act passed in the first year of the reign of Her Majesty Queen Victoria, intituled, ‘An Act for the Amendinent of the laws with respect to Wills,' it is enacted, that no will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction. Every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed to be valid within the said enactment, as explained by this Act, if the signature shall be so placed at or after, or following, or under, or besides, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circums.ance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said Act or this Act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the

nature shall be made

"