Report No. 110

IV. Recommendation as to New Sections

4.20. Draft section to be inserted to deal with conflict rules as to formal validity.-

In the light of the above discussion, we recommend the insertion of the following new sections to deal with the rules of conflict of laws as to the formal validity of wills:

"3A. General rule as to formal validity.-A will shall be treated as properly executed if its execution conformed to the internal law in force-

(a) in the territory where it was executed, or

(b) in the territory where, at the time of its execution or of the testator's death, he was domiciled or had his habitual residence, or

(c) in a state of which, at either of those times, he was a national."1

[Cf. sec. 1, Wills Act, 1963]

"3B. Additional rules.-(1) Without prejudice to the provisions of section 3A, the following shall be treated as properly executed-

(a) a will executed on board a vessel or aircraft of any description, if the execution of the will conformed to the internal law in force in the territory with which, having regard to its registration (if any) and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected;

(b) a will so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property was situated;

(c) a will so far as it revoked a will which under this Act would be treated as properly executed or revoked a provision which under this Act would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be so treated;

(d) a will so far as it exercises a power of appointment, if the execution of the will conformed to the law governing the essential validity2 of the power.

[Cf. sec. 2, Wills Act, 1963]

(2) A will so far as it expresses a power of appointment shall not be treated as improperly executed by reason only that its execution was not in accordance with any formal requirements contained in the instrument creating the power."

[Cf. sec. 2(2), English Act of 1963]

"3C. Certain requirements to be treated as formal.-Where (whether in pursuance of this Act or not) a law in force outside India, falls to be applied in relation to a will, any requirement of that law whereby special formalities are to be observed by testators answering a particular description or witnesses to the execution of a will are to possess certain qualifications shall be treated notwithstanding any rule of that law to the contrary, as a formal requirement only.

[Cf. sec. 3, English Act of 1963]

"3D. Construction of wills.-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"3.

[Cf sec. 4, Wills Act 1963, re-enacting section 3, Wills Act, 1861]

"3E. (1) In this Chapter-

(a) "internal law" in relation to any territory or state means the law which would apply in a case where no question of the law in force in any other territory or state arose;

(b) "state" means a territory or group of territories having its own law of nationality;

(c) "will" includes a testamentary instruments or act, and "testator" shall be construed accordingly.

(2) Where, under this Chapter, the internal law in force in any territory or state if to be applied in the case of a will, but there are in force in that territory or state two or more systems of internal law relating to the formal validity of wills, the system to be applied shall be ascertained as follows:-

(a) if there is in force throughout the territory or state a rule indicating which of those systems can properly be applied in the case in question, that rule shall be followed, or

(b) if there is no such rule, the system shall be that with which the testator was most closely connected at the relevant time, and for this purpose the relevant time is-

(i) the time of the testator's death where the matter is to be determined by reference to circumstances prevailing at his death, and

(ii) the time of execution of the will, in any other case.

(3) In determining for the purposes of this Act whether or not the execution of a will conformed to a particular law, regard shall be had to the formal requirements of that law at time of execution, but this shall not prevent account being taken of an alteration of law affecting wills executed at that time if the alteration enables the will to be treated as properly executed.

(4) This chapter shall not apply to a will of a testator who died before the commencement of the Indian Succession (Amendment) Act and shall apply to a will of a testator who dies after such commencement, whether the will was executed before or after such commencement."

1. See proposed section 3E(1)(a), for a definition of "internal law".

2. The expression "essential validity", though not found in Indian Legislative usage so far, is convenient.

3. Compare Estate of Grees (in re:), 1904 Probate 269.