ABSTRACT
It might legitimately be asked whether there are sufficiently good grounds for putting a testator through the trouble (and often the expense) of fulfilling the onerous requirements of s 9 when all he wishes to do is to arrange for the transmission of his property on death. In answer to this, it is widely (though by no means universally) accepted, in legal circles at least, that rules governing testamentary formalities serve a number of useful functions and confer accompanying benefits on testators. It is felt that, on balance, these benefits outweigh the inconvenience to testators and other disadvantages associated with the operation of these rules. The most important of these functions have been outlined by Langbein in an often quoted article published in [1975] 88 Harv L Rev 489. According to him, the formalities have: • an evidentiary function – writing ensures that evidence of
testamentary intention is cast in in reliable and permanent form. Signing is evidence of genuineness and the probative value of wills is reinforced by the presence of witnesses;
• a channelling function in that it standardises the procedure to be followed in a sphere of legal activity in which a degree of uniformity is preferable to a free-for-all approach;
• a cautionary function in that it impresses on the testator the importance of what he is doing and encourages careful deliberation on the manner in which his property is to devolve on his death;
• a protective function in that the formalities are designed to protect testators from the imposition of undue influence or fraud.
