Report No. 110
II. Formalities in Respect of Wills
4.2. The aspect of private international law and formalities in wills.-
We may state that apart1 from section 5, there are certain other specific topics2 relating to the law of succession which have an interest from the point of view of private international law. To cite one example, the question of formalities in relation to the execution of wills has important international aspects. The formalities prescribed by law for the execution of a will often differ from country to country. Cases may conceivably occur where a person in country X executes a will which comes up for probate in country Y.
When a testator domiciled in one country makes a will abroad or dies abroad or disposes of property situated in more than one country, the question then arises, what would be the set of rules that apply? The situation creates some difficulty in the absence of a definite rule on the subject in municipal legislation. This is not a mere hypothetical question. There have been actual situations in which such anomalies have arisen.
For example, in one of the leading English cases on the subject3, a will of movable property made in the English form (outside the UK) by a British subject who died domiciled in France was held to be invalid, since it neglected the formalities prescribed by French law (the law of domicile), even though it complied with the requirements of English law. In England4, the position has been modified by statute, but in India, there being no such legislation this would be the position even today under section 5.
1. Para. 4.1, supra.
2. See also paras. 4.19 and 4.20, infra.
3. Sremer v. Freeman, (1857) 18 Moore PC 306: 14 ER 508.
4. Paras. 4.5 to 4.8, infra.
4.3. In the field of conflict of laws, formalities in relation to wills are governed by certain connecting factors1. These connecting factors depend on the judicial or legislative approach to the subject as adopted in the country concerned. Under the Indian Succession Act, however, the only connecting factors, applicable for determining questions as to the formalities of wills are those mentioned in section 5, sub-sections (1) and (2). The section makes applicable the law of India in the case of immovable property, and the law of the country of domicile in the case of movable property. There has, so far, been no elaborate development of the concept of "proper law" of the "will" in India.
Although section 5 does not, in so many words, specifically enact that it applies to formalities as to wills, that seems to follow from the wide language of the section, namely, "succession to the property of a person deceased is regulated by " It has, for example2, been held that the validity of a will which purported to dispose of immovable property in British India must be tested by the rules applicable in India as to the execution of wills.
The section seems to cover not only the law of intestate succession, but also the law of wills in all its aspects, namely, their formal validity, essential validity (including capacity of testators and validity of dispositions) and questions of interpretation and legal effect of wills.
1. Morris in (1946) 62 LQR 170, 173, 176.
2. Bhaurao v. Laxmibai, 1896 ILR 20 Born 607 (610).
4.4. Formal validity-anomalies likely to arise from section 5.-
Since section 5 disregards-(i) nationality of the testators or his domicile at the time of execution of the testament (known as domicile ternpore testamente), and (ii) the law of the place of execution, certain anomalies could arise1 in regard to the formal validity of wills.
1. Para. 4.2, supra.