(2) Subsection (1) does not apply to a gift in a will made by a person while he is a privileged testator.
(3) In this section 'gift' includes a devise, legacy, estate, interest or appointment of or affecting any real or personal estate, but does not include a charge or direction for the payment of any debt."
15 This section was based on section 15 of the English Wills Act 1837. The rationale for that section came from the old evidence law regarding competency of witnesses. Section 5 of the Statute of Frauds 1677 provided that "all devises...shall be attested by three or four credible witnesses; or else they shall be utterly void and of no effect". "Credibility" was determined according to the rules of evidence, and until the mid-nineteenth century, evidence affected by interest was inadmissible. Thus, if a witness was "interested", for example by being a beneficiary under the will, then he or she was not a "credible witness" and his or her signature could render the will invalid: see Holdfast d Anstey v Dowsing (1746) 2 Strange 1255; 93 ER 1164. Up until that case, credibility was assessed at the time of application for grant, so that a witness could renounce a gift and so save the will; see Yale "Witnessing Wills and losing Legacies", (1984) 100 LQR 454. However, Anstey's case ruled that the true time for credibility then was the time of attestation.
16 This view as to the time when the witness must be disinterested has been followed ever since. Thus, in Re Royce's Will Trusts [1959] Ch 626, a gift was not affected where, at the time of witnessing the will, the witness was not beneficially entitled under it, but, by reason of later events, he was beneficially interested at the time of the grant.
17 The consequence of Anstey's case was that legislation was needed. This was drafted by Lord Hardwicke and became the Witnesses to Wills Act (UK) 1752. Professor Yale, in his article at p 454 et seq, sets out Lord Hardwicke's letter to the Lord Chancellor of Ireland explaining the measure and its necessity. In short, the 1752 Act enabled an interested witness to give evidence as to signatures on the will because any gift to that witness was invalidated.
18 The rules of evidence were reformed in the 19th century to remove the rule that a witness was incompetent to give evidence by reason of interest. However, after review of the law of wills by the Real Property Commissioners in 1833, it was decided to retain the provision that gifts to witnesses should be void. Thus, the provision remained in the Wills Act 1837 which basically re-enacted the 1752 Act (although it extended certain provisions). The rationale for keeping the rule was revised, and it was held that if a witness or witnesses spouse was allowed to take a benefit under a will, an opportunity for undue influence would arise.
19 It may be a little bold to state the law at this time so definitely. It is clear, as Professor Yale's article shows, that there were two schools of thought, one from the common lawyers and the other from Doctor's Commons where the probate law was administered. Further, the Statute of Frauds only applied to wills of land, not to testaments of personalty. Again, common lawyers such as Lord Mansfield preferred the Doctor's approach, see eg Wyndham v Chetwynd (1757) 1 Wm Blacks 95, 100; 96 ER 53, 55. However, what has been set out above is, I trust, a fairly simple summary of the prevailing view as to the history of s 13 of the Act.