Conditional, Joint and Mutual Wills

The LSA does not cover these.  They are rare.  In the event of a local court being confronted with such wills, the English Law on the matter would be persuasive.

(a) Conditional wills
This refers to a will intended to operate on condition of a specified event.  If the event fails to occur the will would be ineffective, e.g. a testator providing that his will should operate only if he dies on a dangerous trip, which he is about to undertake.

It is sometimes difficult to decide whether the danger to be faced is merely the motive for making the will or whether death in the envisaged circumstances is the pre-condition for the operation of the will.  If it is a motive the will would be effective, but if it is a pre-condition it would be ineffective.

Whether a danger in a will is a pre-condition or a motive is purely a matter of construction. The standard way of introducing a precondition is by using the word ‘if’. However, it is debatable if a conditional clause is made if other words are used e.g. in the event of, incase. The courts would tend to construe that a clause is conditional if the word ‘if’ is used.

In Lindsay vs. Lindsay (1872) a will commenced “if I should die at sea or abroad …” It was held, as matter of construction, to be conditional. When the testator died in England, i.e. while not at sea or abroad, it was held to have no effect as the pre-condition of dying at sea or abroad was not satisfied. In In the Goods of Dobson (1866) the testator’s will commenced with the words “in case of any fatal accident happening to me being about to travel by railway, I leave …” It was held not be a conditional will.  His belief that he might die in the course of the journey was merely the motive in making the will, it was not a precondition that he died on the journey before the will operated. In Re Spratt’s Goods (1897) an army officer serving in the New Zealand during the Maori War made a privileged will.  The same took the form of a letter to his son leaving everything to him should anything happen to the officer.  He did not die in the war but he lived on for 32 years without making a new will or revoking the privileged will.  It was held that the privileged will was admissible to probate and the son was entitled to take all of his father’s estate.

(b) Joint wills
A joint will is created where two or more persons express their wishes on death in one document. The joint will takes effect as the separate wills of the parties who made it.  For example, a husband and wife could make a joint will.  If wife dies first it would be admitted to probate as the wife’s will in the first instance, then when the husband dies, it would be admitted to probate as the will of the husband.


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