Devise without words of limitation
22. Where any real estate shall be devised to any person without any words of limitation, the devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in the real estate unless a contrary intention shall appear by the will.
Construction of words importing want or failure of issue
23.—
(1) In any devise or bequest of real or personal estate, the words “die without issue” or “die without leaving issue”, or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of that person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will.
(2) This Act shall not extend to cases where those words referred to in subsection (1) import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.
Devise of real estate to trustee or executor
24. Where any real estate shall be devised to any trustee or executor, the devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication.
Devise of real estate to trustee without limitation
25. Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by the trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or the beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of that person, the devise shall be construed to vest in the trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in the real estate, and not an estate determinable when the purposes of the trust shall be satisfied.
Gifts to children or other issue who leave issue living at testator’s death not to lapse
26. Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of that person shall die in the lifetime of the testator leaving issue, and any such issue of that person shall be living at the time of the death of the testator, that devise or bequest shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.
Saving as to wills of soldiers and mariners
27.—
(1) Notwithstanding anything in this Act, 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 making of this Act and may do so even though under the age of 21 years.
Validity of testamentary dispositions of real property made by soldiers and sailors
(2) A testamentary disposition of any real estate made by a person to whom this section applies, and who dies after 29th August 1938 shall, notwithstanding that the person making the disposition was at the time of making it under 21 years of age or that the disposition has not been made in such manner or form as was on 29th August 1938 required by law, be valid in any case where the person making the disposition was of such age and the disposition has been made in such manner and form that if the disposition had been a disposition of personal estate made by that person it would have been valid.
Power to appoint testamentary guardians
(3) Where any person dies after 29th August 1938 having made a will which is, or which, if it had been a disposition of property, would have been rendered valid by this section, any appointment contained in that will of any person as guardian of the infant children of the testator shall be of full force and effect.
Section to extend to naval, marine and air forces
(4) This section shall extend to any member of any naval or marine forces not only when he is at sea but also when he is so circumstanced that if he were a soldier he would be in actual military service within the meaning of this section.
(5) For the purposes of this section, “soldier” includes a member of an air force.
Rectification of will
28.—
(1) A court may order that a will be rectified so as to carry out the testator’s intentions, if the court is satisfied that, as a consequence of either or both of the following, the will is so expressed that the will fails to carry out the testator’s intentions:
(a) a clerical error;
(b) a failure to understand the testator’s instructions.
(2) Except with the permission of a court, an application for an order under subsection (1) must be made no later than 6 months after the date on which a grant authorising the administration of the testator’s
estate is first made.
(3) Where the personal representatives of the testator distribute, after the end of the period of 6 months referred to in subsection (2), any part of the testator’s estate —
(a) this section does not render the personal representatives liable for making that distribution on the ground that they ought to have taken into account the possibility that a court may permit the making of an application for an order under subsection (1) after the end of that period; but
(b) this subsection does not affect any power to recover, by reason of the making of an order under subsection (1), any part of the testator’s estate that is so distributed.
(4) The following grants are to be disregarded when considering, for the purposes of this section, when a grant authorising the administration of the testator’s estate is first made:
(a) a grant limited to settled land or to trust property;
(b) any other grant that does not permit the distribution of the testator’s estate;
(c) a grant limited to a part only of the testator’s estate, unless a grant limited to the remainder of the testator’s estate has previously been made or is made at the same time.
(5) For the purposes of this section, where a grant consists of any probate, or letters of administration with the will annexed, sealed under section 47(1) of the Probate and Administration Act (Cap. 251), the grant is deemed to be made on the date of sealing of the probate or letters of administration with the will annexed.
(6) The Family Justice Rules Committee constituted under section 46(1) of the Family Justice Act 2014 (Act 27 of 2014) may make Family Justice Rules —
(a) to regulate and prescribe the procedure and practice to be followed in any application for an order under subsection (1); and
(b) to provide for any matter relating to any such procedure or practice.
(7) In this section —
“court” means the High Court or a Family Court;
“grant” means any of the following:
(a) any probate granted by the High Court or a Family Court, or granted before 1 January 2015 by a District Court;
(b) any letters of administration with the will annexed granted by the High Court or a Family Court, or granted before 1 January 2015 by a District Court;
(c) any probate, or letters of administration with the will annexed, sealed under section 47(1) of the Probate and Administration Act;
“letters of administration with the will annexed” and “probate”
have the same meanings as in section 2 of the Probate and Administration Act.
