Fourth Report Of The Private International Law Committee (Formal Validity Of Wills)
| Author | J. H. C. Morris |
| Published date | 01 January 1959 |
| Date | 01 January 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00514.x |
REPORTS
OF
COMMITTEES
FOURTH
REPORT
OF
THE
PRIVATE
INTERNATIONAL
LAW
COMMITTEE
(FORMAL VALIDITY
OF
WILLS)
FOR
nearly a century writers on the conflict of laws in England and
elsewhere have been plagued by the incongruities and ambiguities
of
the Wills Act,
1861
(Lord Kingsdown’s Act). The news that the
Private International Law Committee in their Fourth Report
propose its radical amendment is therefore
to
be
welcomed.
As is well known, the Act was passed
to
remove the hardships
which resulted from
Bremer
v.
Freeman,2
where
it
was held that,
since wills of movables must comply with the formalities prescribed
by the law
of
the testator’s last domicile, the will of
a
British
subject domiciled (in the English sense) in France was void for
non-compliance with French formalities.
It
is obvious now what
the statute ought to have provided.
It
ought to have provided
in general terms that any will of movables should be formally
valid if it complied with the formalities prescribed by the law
of
the place of execution,
or
by the law of the testator’s domicile at
the date
of
execution,
or
by the law
of
the testator’s domicile at
the date
of
his death. Unfortunately, sections
1
and
2
contain
three major errors:
(1)
they are confined to the wills of British
subjects, though the mischief
to
be cured was not confined to them;
(2)
they differentiate between wills made inside and outside the
United Kingdom, allowing a wider choice of forms
for
the latter
than
for
the former; and
(3)
they are based
on
the domestic law
distinction between realty and personalty and not on the conflict
of
laws distinction between movables and immovables. Moreover,
section
3
is drafted in such vague terms that
no
two writers are
agreed on its meaning.
The Committee recommend that sections
1
and
2
of
the Act
should be replaced by legislation dealing with all wills wherever
made, whether made by British subjects
or
not, and whether dis-
posing of land
or
movables. A will should be formally valid if
it
complies with the formal requirements of the internal law of any
of the following: (a) the place where the will was made; (b) the
place where the testator was domiciled at the time of making the
will
or
of death; (c) any country
of
which the testator was a
national at the time of making the will
or
of death;
(a)
in
so
far
1
Cmnd.
491.
The Committee’s First Report, which dealt with the law
of
domicile, was published in February,
1954
(Cmd.
9068).
The Committee’s
Second and Third Reports, dealing respectively with international sales
of
goods and with the recognition and enforcement of foreign arbitral awards,
have (unaccountably) not been published.
*
(1857)
10
Moo.P.C.
306.
65
VOL.
n
6
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