Report No. 110
IV. Persons Involved in Calamities-Proposed New Section
14.14. Section 65A-Suggested provision for calamities.-
This disposes of section 65. Before proceeding to the next section, it is convenient to deal with one matter on which an amendment of the Act by inserting a new provision seems to be called for. The point relates to the persons who can make privileged wills. At present, the provisions of the Act (as to privileged wills) are confined to persons belonging to the armed forces and mariners at sea. The rest of the citizens must comply with section 63 which lays down elaborate formalities for making unprivileged wills.
Now, even in the case of civilians, one could conceive of many situations where it may be extremely difficult to comply with the strict legal formalities imposed by section 63-as, for example, in the case of persons affected by accident, earthquake, fire, flood or other similar calamity. These are all situations wherein the persons concerned reasonably believe that death is imminent. They may wish to make a declaration of their testamentary intentions, in view of the anticipated imminence of death. But, at present, there is no legally effective way of doing so.
The law should enable persons so placed to make a will with less stringent formalities than those imposed by section 63. What "less stringent" formalities should be permitted can be formulated on the basis of section 66, (privileged wills). For example, the provisions of section 66, clauses (a) to (d) and (h), (at present confined to armed forces) could be made applicable to such persons without much substantial change. Section 66, clauses (e), (f) and (g) could also be made applicable to them, though with suitable adaptations.
The Succession Act does not provide for this contingency, presumably because attention has not so far been devoted to it. The matter, however, appears to be one for which there is need for a suitable provision.
It may be of interest to note that in one respect, the Roman law did think of this situation as a special one, by providing that while, ordinarily, the witnesses to a will should all be present together at the same time, it need not be so where a will is made in the time of pestilence.1 This special treatment given to wills made in epidemics seems to survive in some civil law countries.2
1. Lee Roman Law, (1955), p. 190.
2. J. Gareth Miller Machinery of Succession, (1977), p. 157, f.n. 22.
14.16. Position in Japan.-
It would also be of interest to note that the Japanese Civil Code1 has, by a number of provisions, provided for "exceptional forms" of wills, applicable in special cases where ordinary forms of making a will cannot be acted on. In Japan, it is permissible to make a will in a special form by virtue of these provisions. There are seven special forms answering to seven different special circumstances.
It is unnecessary to enumerate all of them, but by way of illustration, it may be mentioned that provision exists for the making of a will in special form by a person "on the verge of death"2 or by a person in a place cut off from communication on account of infectious disease. Ordinarily, Japanese law does not require attestation if the will is a holograph. To this general rule, an exception is created by the provisions relating to certain special situations, of which two are quoted below3:-
1. On the verge of death-Article 1076.- On the Verge of death. When a person on the verge of death through sickness or any other cause desires to make a will, he may do so, in the presence of at lease three witnesses by making an oral declaration of its purport to one of them. In such case the person to whom the oral declaration was made must write it down and read it over to the testator and the other and witnesses and thereupon all the witnesses must sign and seal the writing after having acknowledged its correctness (Art. 1076, 1).
A will made under the foregoing provision is void unless, within twenty days from the date of the will, one of the witnesses or a person interested applies to the Local Court (of the place of domicile of the testator if he is still alive, or of the place of the commencement of the succession if he is dead) and have it confirmed (Art. 1976). Confirmation (kaku-nin of a will is a judgement by which the will is publicly certified to be in due order and genuine; therefore, the court must not confirm a will unless it is satisfied that it is in due order and represents the true intention of the testator (Art. 1076, 3).
2. In a place isolated by administrative measure.- In a place cut off from communication on account of an infections disease. A person in a place which by an administrative measure is isolated from the outer world on account of Cholera, or any other officially recognised infectious disease, may make a will in the presence of a police officer and at least one witness (Article 1077), because in such a place it may be infectious disease, may make a will in the presence of a police officer witnesses.
Article 1082 and Article 1083.-In this case the testator need not write the whole document himself, but the document must be signed and sealed by the testator, the draftsman, the person required to be present, and the witnesses (Article 1082). If there is a person who is unable to sign or "seal, the persons present or the witnesses must make an additional explanatory statement of the fact in writing (Art. 1083)".
1. Articles 1076 to 1086, Japanese Civil Code; Becker Principles and Practice of the Civil Code of Japan, (1921), pp. 756 to 759.
2. Article 1076, Civil Code of Japan.
3. Articles 1076 and 1077 Civil Code of Japan.
14.17. Position in countries in Eastern Europe-Hungary.-
We may also refer to the position in Eastern European countries. While, in some countries in Eastern Europe, privileged wills are limited1 in scope, in several other countries, special provisions exist for certain special situations (apart from the privilege given by the legal system to members of the armed forces).
Thus,2 in Hungary, oral wills may be made in extraordinary situations in which the life of the testator is in danger and in which the testator cannot make a written will, or can make a written will only with considerable difficulty.3 The oral will is to be made by the testator reciting the contents of the last will in the simultaneous presence of two witnesses and, on the same occasion, declaring that the statement contains his will.4
An oral will made under the above provisions loses its force if the situation of emergency has ceased to exist and the testator was, for a continuous period of three months, in a position to make a will by an instrument.5
1. Szirmai (Ed.) Law of Inheritance in Eastern Europe and in the People's Republic of China, (1961), pp. 96 and 129.
2. Szirmai, (Ed.) Law of Inheritance in Eastern Europe and in the People's Republic of China, (1961) pp. 196, 236 and 258.
3. Section 634, Hungarian Civil Code.
4. Section 635, Hungarian Civil Code.
5. Section 651, 3rd paragraph, Hungarian Civil Code.
Under the Polish Civil Code,1 in cases where the making of an ordinary will would be impossible or very difficult owing to exceptional circumstances, i.e. disruption of transport, epidemics, military operations, illness or accident of the testator, justifying a fear of his death, the testator may make an oral will in the presence of three witnesses, present at the same time. (If the testator is ill or wounded, the witnesses need not be present simultaneously).
This will should be committed to writing as soon as possible by one of the witnesses, who must state the date of the will and the date of committing the will to writing; the will must then be signed by two out of the three witnesses. However, failure to write out the will immediately or lack of signature does not invalidate it. It may be signed later.
If the last will is not committed to writing, its contents can be established by sworn and identical statements of the two witnesses out of the three before whom the testator so declared his testamentary intentions.
1. Articles 82-84, Polish Civil Code.
14.19. Romania and Yugoslavia and R.S.F.S.R. Civil Code.-
(a) In Romania, members of the Armed forces and civilians attached to armed forces may, in exceptional circumstances, make a will with fewer formalities than ordinary wills, i.e. in the presence of the commander or field officer, assisted by two witnesses. If the testator is sick or wounded, it can be executed in the presence of the doctor of the unit and such wills have temporary force and lose their validity after six months when the testator returns to the place where he can make an ordinary will. During epidemics, a will in the presence of city council assisted by two witnesses is volid.1 The physical condition of the testator is irrelevant, and only the place should be under quarantine.
(b) In Yugoslavia, the law allows oral wills, (though exceptionally2,) where an emergency due to war or epidemic is created and the testator is not in a position to make a written will. The validity of such a will is upto 30 days from the end of emergency. The will should be made before two witnesses and any provision for the benefit of the witnesses or their ascendants or descendants and collaterals upto the 4th degree or spouses of them, shall be null and void.
(c) In the Civil Code of one of the States forming part of U.S.S.R., there occur the following provisions3:
Article 540, Notarial Form of a Will.
A will should be drawn up in writing, indicating the place and time of its compilation, and be personally signed by the testator and notarially certified.
Article 541, Wills equivalent to Notarially Certified Wills.
There shall be equivalent to notarially certified wills:
(1) wills of citizens being treated in hospitals, other in-patient medical institutions, sanatoriums or residing in homes for the aged and disabled, which are certified by the chief doctors, their medical deputies, or duty doctors of these hospitals, medical institutions, sanatoriums, as well as directors and chief doctors of the said homes for the aged and disabled;
(2) wills of citizens on sea-going vessels of internal navigation sailing under the flag of the USSR which are certified by the masters of these vessels;
(3) wills of citizen in prospecting, aretic, and other similar expeditions which are certified by the heads of these expeditions;
(4) wills of military servicemen and other persons being treated in military hospitals, sanatoriums, and other military medical institutions which are certified by their heads sanatoriums and other military medical institutions;
(5) wills of military servicemen and at points where military units, formations, institutions, and military training institutions are situated where there are no state notarial offices or other agencies performing notarial activities, also the wills of workers and employees, members of their families, and family members of military servicemen, which are certified by the commanders (or heads) of these units, formations, institutions, and educational institutions;
(6) wills of persons in places of deprivation of freedom which are certified by the heads of the places of deprivation of freedom.
Article 542, Signing of a Will by Another Person
If a testator, by virtue of physical defects, illness, or other reasons, can not personally sign a will, it may be signed at his request in the presence of a notary or other official (Article 541) by another citizen, indicating the reasons by virtue of which the testator could not sign the will personally.
1. Romanian Civil Code, Article 872.
2. Yugoslavia Civil Code, Articles 80 and 81.
3. Articles 540-541, R.S.F.S.R. Civil Code (1964), quoted in Hazard Butler and Magg's Soviet Legal System, (1977), pp. 398-399.
14.20. Section 65A.-
On a careful consideration of the pros and cons of the matter, we are of the view that a new section, say, as section 65A, should be inserted1 to deal with the situation now under consideration. It is true that if death occurs after a long time, it may be difficult to determine factually if there had been a flood etc. But the balance of convenience justifies the insertion of a specific provision as mentioned above. Accordingly, we recommend that a new section should be inserted, somewhat on these lines:
"65A. A person affected by accident, earthquake, fire, flood or other similar calamity in circumstances wherein he has reasonable apprehension of immediate: death, may make a privileged will".
Section 66, clauses (e), (f) and (g), may, in consequence, be slightly amended so as to replace the words "soldier, airmen or mariner" by the words "the person entitled to make a privileged will."
1. Para. 14.8, supra.