Report No. 110
III. Legislation in England as to Formalities
4.5. Wills Act, 1861.-
To remedy some of these anomalies, in England, the Wills Act, 1861 (Lord Kingsdowne's Act) was passed. It enacted a provision that a will of personal property made out of the United Kingdom by a British subject should be admissible to probate, if it satisfied the formalities required by the lex loci actus or by the law of the testator's domicile tempore testmente or by the law of the domicile of origin if such domicile was in Her Majesty's Dominions. These criteria should be a substitute for the traditional test of domicile. If the will was made within the UK the only permissible substitute was the lex loci actus.
4.6. Position in England before 1861.-
Before 1861, a will, according to English law had to be made in the form prescribed by the law of the testator's domicile at the time of death, at least in relation to movables. Neither the law of his domicile at the time of the execution of the will, nor that of the place where he made the will, sufficed. The situation was highly unsatisfactory. A domiciled Englishman who fell ill while travelling abroad and wished to make will immediately might have difficulty in finding a lawyer who could assist him in making a will in the English form, while it would be easy to use the local forms.1
The Act of 1861 remedied2 the situation to some extent.
1. Wolff Private International Law, (1950), p. 584, para. 559.
2. Para. 4.5, supra.
4.7. The English Act of 1861, though welcome as an improvement, did not effect an adequate reform in the Law. In 1963, the Wills Act was passed1 which (while repealing the Act of 1861), has made comprehensive provisions by increasing the relevant connecting factors. Nationality and habitual residence are now added to the factors earlier recognised (by the common law and by the Wills Act, 1861), namely, domicile and locus actus.2-3
1. Cf. Fourth Report of the Private International Law Committee, (1958).
2. Cheshire Private International Law, (1970), p. 591.
3. The Act of 1963 has been noted down by Morris, (1964) 13 ICLQ 684; Kahn Fraund 1 (1964) 27 Modem Law Review 55.
4.8. Summary of English Act of 1963.-
It may be useful to give, at this stage, some idea of the scheme of the Wills Act, 1963. Leaving aside provisions not material for our purpose, the subject dealt, within the Act section-wise are as follows:-
Section 1: enacts a general rule as to formal validity of wills. A will shall be treated as properly executed if its execution conformed to the "internal law" in force in the territory where it was executed or in the territory where at the time of its execution or at the time of testator's death, he was domiciled or habitually resident, or in a state of which, at either of these times, he was a national.
The phrase "internal Law" is defined as the law which would apply in a case where no question of the law in force in any other country or place arose. It thus avoids the possibility of application of the doctrine of renvoi.
Provision is made to determine "internal law" in regard to a country where more than one system is in force.
Section 2(1): Provides additional rules (i.e., in addition to section I), to deal with-
(a) wills executed on board a vessel or aircraft,
(b) wills disposing of immovable property (the law in force in the territory where the property was situated is adopted),
(c) a will, revoking an earlier will, and
(d) a will exercising a power of appointment (the law governing the essential validity of the power is adopted). The important provisions in this regard are-
(a) a will executed on board a vessel or aircraft of any description, if it complied with the law of the place with which the vessel or aircraft may be taken to have been most closely connected having regard to its registration (if any) and other relevant circumstances, is properly executed.
(b) a will disposing of immovable property, if it complies with the law in force in the place where the property was situated, is properly executed.
(c) a will revoking a will which was executed under the Act if it complied with the same law as the revoked will did, is properly executed.
Section 2(2): Provides, in effect, that in regard to a will exercising a power of appointment, non-compliance with formal requirements contained in the instrument creating the power would not render the will inoperative.
Section 3: Provides that any requirements of a foreign law (that is, , the foreign law which would become relevant under the tests adopted in the Act), prescribing special formalities to be observed by "testators answering a particular description" or prescribing certain qualifications to be possessed by witnesses to wills, are to be treated as formal requirements only1.
Section 4: Provides that the construction of a will shall not be altered by reason of any change in the testator's domicile after the execution of the will. This reenacts section 3 (in part) of the Wills Act, 1861.
Section 5: Relates to Scotland.
Section 6: Contains provisions for interpretation.
Sections 7(1), (2) and (3): Contain certain provisions not of interest to India.
Section 7(4): Makes provisions as to the operation of the Act from the point of view of time. It provides that the Act shall not apply to a will of a testator who died before the commencement of the Act, but shall apply to a will of a testator who dies after such commencement, whether the will was executed before or after that time.
1. See illustrative hypothetical cases, infra, para. 4.15.
4.9. Principle underlying section 1 of the English Act of 1963.-
So much as regards the scheme of the English Act of 1963. It may be useful now to state briefly the rationale underlying some of the important provisions. The principle underlying section 1 of the Act, which enumerates several alternative tests for determining the formal validity of wills, is that while only those documents should be accepted as valid wills, of which it can be said with reasonable certainty that they were executed by the testator with the intention of disposing of his assets after his death, a document which fulfils these conditions ought to be accepted as valid and ought not to be excluded because of some technical imperfections of which the teastor might reasonably have been unware.
Accordingly, the Act seeks to secure that if the testator complies with the formal requirements of any system of law which he may reasonably assume to be applicable, his will should be treated as formally valid. The Act thus increases the possible systems of law to which reference may be made to establish the formal validity of wills. Validity by one of them is sufficient.1
1. cf. Sykes & Pryles Australian Private International Law, (1979), p. 449.
4.10. Habitual residence.-
One of the tests given in section 1 of the English Act of 1963 is "habitual residence". Cheshire's comments1 as to the position resulting from the Act in regard to habitual residence are interesting:-
"With this old adoption of the test of habitual residence, the frustration arising from the disparity between the Anglo-Saxon and Continental concepts of domicile will almost be a memory of the past in this limited field. At any rate, if a testator makes a will according to the law of the country where he has spent the greater part of his life, there will no longer be any occasion to counter the plausible argument that his domicile was elsewhere since he did not intend his residence to be permanent"2.
It may be pointed out that under section 1 of the English Act, a will is to be treated as properly executed if its execution conformed to the law in force in the place
(i) where the will was executed,
(ii) where the testator was domiciled,
(iii) where the testator had his habitual residence, or
(iv) of which the testator was a national.
The first of these choices (place of execution) can relate, in time and place, only to the execution itself, but the other three expressly refer to the relevant place either at the execution of the will or at the testator's death3.
1. Cheshire Private International Law, 1970, p. 592.
2. Ramsay v. Liverpool Royal Infirmary, 1938 AC 588.
3. J.T. Farrand Foreign Wills and the Wills Act, 1963, 103 SJ 686, 687.
4.11. Section 2(1)(a), English Act, 1963.-
The law of the place where the will was made, is given an extended definition in the case of wills made on board a vessel or aircraft "of any description". Section 2(1)(a) of the English Act of 1963 allows (in addition to law of the place of execution), another alternative, namely, the internal law in force in the territory to which the vessel or aircraft may be taken to have been most closely connected.
Normally, this would be the flag State. In this context, the English Act does not require the vessel or aircraft to be in motion when the will is executed. Hence a holograph will made on board a French ship alongside in London docks, or on board a French aircraft grounded at London airport, might be admissible to probate1.
1. Morris The Wills Act, 1963 13 ICLQ 684, 688.
4.12. View of Cheshire as to vessels.-
Cheshire1 thus explains the position as to vessels:-
"Where a will is made on board a vessel or aircraft whether civil or not, the identity of the lex loci actus receives special statutory treatment. If at the time of execution the aircraft is grounded in a particular territory or the vessel is within territorial waters, the testator may comply with the internal law of that territory.
Alternatively, he may comply with the internal law of the territory with which, having regard to its registration and other relevant circumstances, the vessel or aircraft, whether in course of transit or not, has the closest connexion2. Judged by this test, the lex loci will normally be the law of the flag, which is represented by the law of the territory where the ship or aircraft is registered if the flag is common to a political unit containing a variety of legal systems"3.
1. Cheshire Private International Law, (1970), p. 591.
2. Section 2(1)(a).
3. Cf. Cheshire Private International Law, 1970, p. 282.
4.13. Principle as to the law of ship.-
Mention may, in this context, be made of the principle that the "local law" operating on board a ship is the law of the flag flown by the ship1 and that the law governs transactions on board, including marriages to the same extent as they would be governed by the lex loci if they took place elsewhere.2
1. J.D. White Marriages at Sea, 17 LQR 283, 292.
2. (a) Halsbury's, 4th Edn., Vol. 7., p. 101.
(b) Jackson Formation and Annulment of Marriage, p. 226.
(c) Marriage on the High Seas, (1928-29) 38 Yale LJ 1129, 1135.
4.14. Main tests adopted in the English Act.-
By way of a very brief summary of the main tests adopted in sections 1-2 of the Wills Act, 1963, it may be stated that a will of movables or land is taken as properly execute1 if its execution conforms to the internal law in force in the territory where it was executed, or in the territory where at the time of execution of the will, or at the time of the testator's death the testator was domiciled, or had his habitual residence or in a State of which at either of these times he was a national.2
In addition, a will of immovables is to be treated as properly executed if its execution conforms to the internal law in force in the territory where the property is situated.
1. Section 1, Wills Act, 1963.
2. Section 2(1)(b), Wills Act, 1963.
4.15. Operation of section 3, 1963 Act, illustrated.-
So much as regards sections 1 and 2 of the English Act of 1963. The operation of section 3 of the English Act of 1963 could be illustrated by taking hypothetical cases involving the application of statutory provisions in force in Netherlands1 and in France.2
(i) Dutch law allows a holograph will by a Dutchman, but not outside Netherlands. It appears that there are similar provisions in Greece, Portugal and Uruguay3. A Dutchman domiciled in England executes such a will. The will does not acquire any validity by virtue of the Act of 1963, because the English law (law of domicile) does not allow a holograph will, and Dutch law (law of nationality) does not allow it outside Netherlands. This prohibition in Dutch law, being regarded as a "matter of form"-section 3-would continue to apply.
(ii) By German law, a will can be made by a person above 16 years, but only a person above 21 years can make a holograph will. A German above 16 makes a holograph will in France (French law allows holograph wills). The will is valid, because French law (the law of place of execution) permits it. The fact that German law prohibits it to persons under 21 becomes immaterial, since section 3 provides that it is a matter of form.
1. Article 992, Dutch Civil Code, referred to by Kahn-Fraund in note on the Wills Act, 1963, (1964) 27 Modem Law Review 55, 58, 59. Also see Wolff Private International Law, (1950), p. 589.
2. Articles 969 and 970, French Civil Code referred to by Kahn-Fraund in note on the Wills Act, 1963, (1964).27 Modem Law Review 55, 58, 59.
3. Wolff Private International Law, 1950, p. 589.
4.16. Effect of section 4 of the English Act.-
According to section 4 of the English Act of 1963, no will becomes invalid by reason of any subsequent change of the testator's domicile. This rule applies not only to the formalities of a will, but also to the testator's capacity to make one. It applies not only to British subjects, but also to any testator of whatevet nationality and whatever domicile.
The result of this is that if the testator, when making the will, was capable of doing so under the law of his domicile at that time, the will remains, valid, even though, under the law of his last domicile it would have been void on the ground of his incapacity, in the example given above.1 Therefore, the will made by a sixteen year old German testator in Germany should be regarded as valid, even if the testator dies domiciled in England.
1. Para. 4.14, supra.
4.17. Wide scope of the Act.-
The impression one gains from the Act is that all the choices likely to be hit upon in practice have been put in, on the principle that no will should be invalid for want of form, provided that it complies with some law which the testator has at least had a temporary connection.1
1. Compare J.T. Farrand Foreign Wills and the Wills Act, 1963, 107 Si 686, 687.
4.18. Recommendation-Need for addition of suitable provisions adapting the English Act of 1963.-
This, in brief, is the scheme of the English Act, whose most important effect is the widening of the connecting factors in relation to the formal validity of wills. It appears to us that having regard to the considerations mentioned at the outset in this Chapter1, the connecting factors that could possibly operate in relation to the formal validity of wills should be made more liberal than at present, in order to avoid anomalies of the nature that arose in England in the last century2 and similar other anomalies that could possibly arise.
To avoid such anomalies, the (English) Wills Act, 1963 was passed. As that Act furnishes a good precedent, we recommend the adoption of its provisions with appropriate adaptations and modifications. To avoid a possible inconsistency in the legislation, it will, as a consequential change, be necessary to modify3 suitably the test of section 5. We shall make a recommendation for its amendment at the appropriate place.
1. See para. 4.2, supra.
2. Para. 4.6, supra.
3. See recommendation as to section 5, para. 4.19, infra.
4.19. Amendment of section 5 also recommended.-
It will be noticed that some of the tests that will become operative under the proposed new provision1 are not mentioned in section 5. That section provides for only two criteria (law of domicile of a person at the time of his death or the law of India). On the addition of the proposed tests, the restrictive rule contained in section 5 would, to that extent, become inaccurate.
1. Para. 4.14, supra.