The conception of freedom of disposition by will, familiar as it is in modern England and the United States, both generally considered common law systems, is by no means universal. In fact, complete freedom is the exception rather than the rule. Legal systems which are based upon Roman law, such as those of Scotland, France and Quebec, known as civil law systems allow whole estates to be alienated only where the deceased leaves no widow or near relatives. In France, this restriction has met with condemnation from eminent legal and economical authorities.
The will, if not purely Roman in origin, at least owes to Roman law its complete development, a development which in most European countries was greatly aided at a later period by ecclesiastics versed in Roman law. In India, the will was unknown before English conquest; in law of Moes and in ancient Athens the will, if it existed at all, was of a very rudimentary character. The same is the case with the Leges barbarorum[?], where they are unaffected by Roman law. The will is, on the other hand, recognized by Rabbinical and Islamic law.
The early Roman will differed from the modern will in important respects. It was effectual during the lifetime of the person who made it; it was made in public, all knew of the legator's intentions; and it could not be changed. The objective, as in adoption, was to secure the perpetuation of the family. This was done by securing the due vesting of the breed in a person who could be relied upon to keep up the family rites. There is much probability in the conjecture that a will was only allowed to be made when the testator[?] had no known gentile relatives, uless they had waived their rights.
It is certain from the text of Gaius that the earliest forms of will were those made in the comitia calata and those made in procinctu, or on the eve of battle. The former were published before the comitia, as representative of the patrician genies, and were originally a legislative act. These wills were the peculiar privilege of patricians. At a later time the form of plebeian will developed (irs/amentum per aes ci libram), and the law of succession under testament was further modified by the influence of tile practor, especially in the direction of recognition of fideicommissa similar in some respects to testamentary trusts. Codicilli or informal wills, also came into use, and were sufficient for almost every purpose but the appointment of an heir.
In the time of Justinian a will founded partly on the jus civile, partly on the edict of the praetor, partly on imperial constitutions and so called testamentum tripertitum, was generally in use. The main points essential to its validity were that the testator should possess testamentary capacity, and that the will should be signed or acknowledged by the testator in the presence of seven witnesses, or published orally in open court. The witnesses must be idonci, or free from legal disability. For instance, women and slaves were not good witnesses.
The whole property of the testator could not be alienated. The rights of heirs and descendants were protected by enactments which secured to them a legal minimum, the querela inofficiosi testamenhi being the remedy of those passed over. The age at which testamentary capacity began was fourteen in the case of males, twelve in the case of females. Up to 439 A.D. a will must have been in Latin; after that date Greek was allowed.
Certain persons, especially soldiers, were privileged from observing the ordinary forms. The liability of the heir to the debts of the testator varied during different periods. At first it was practically unlimited. The law was then gradually modified in favour of the heir, until in the time of Justinian the heir who duly made an inventory of the property of the deceased was liable only for the assets to which he had succeeded. This limitation of liability is generally termed by the civilians beneficium inventarii.
Something like the English probate is to be found in the rules for breaking the seals of a will in presence of the praetor. Closely connected with the will was the donatio mortis causa, the rules of which have been as a whole adopted in England (see below). An immense space in the Corpus juris is occupied with testamentary law. The whole of part v. of the Digest (books xxviii.-xxxvi.) deals with the subject, and so do a large number of constitutions in the Code and Novels.
The effect of Christianity upon the will was very marked. For instance, the duty of bequeathing to the Church was inculcated as early as Constantine, and heretics and monks were placed under a disability to make a will or take gifts left by will. A will was often deposited in a church. The canon law follows the Roman law with a still greater leaning to the advantage of the Church. No Church property could be bequeathed. Manifest usurers were added to the list of those under disability. For the validity of a will it was generally necessary that it should be made in the presence of a priest and two witnesses[?], unless where it was made in pias causes. The witnesses, as in Roman law, must be done. Gifts to the Church were not subject to the deductions in favour of the heir and the children necessary in ordinary cases. In England, the Church succeeded in holding in its own hands for centuries jurisdiction in testamentary matters.
This is practically in accordance with the definition of Modestinus in Digest xxviu. I, 1, voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit. Ancient Law, chap. vi. dii. ioi.
The Roman law of wills has had considerable effect upon English law. In the words of Sir H. Maine, "The English law of testamentary succession to personalty has become a modified English form of the dispensation under which the inheritances of law. Ronian citizens were administered." At the same time there are some broad and striking differences which should be borne in mind. The following among others may be noticed:
Liberty of alienation by will is found at an early period in England. To judge from the words of a law of Canute, intestacy appears to have been the exception at that time. How far the liberty extended is uncertain; it is the opinion of some atithorities that complete disposition of land and goods was allowed, of others that limited rights of wife and children were recognized. However this may be, after the Conquest a distinction, the result of feudalism, to use a convenient if inaccurate term, arose between real and personal property. It will be convenient to treat the history of the two kinds of will separately.
It became the law after the Conquest, according to Sir E Coke, that an estate greater than for a term of years could be disposed of by will, tinless in Kent, where the custom of gavelkind Real prevailed, and in some manors and boroughs (especially property, the City of London), where the pre-Conquest law was preserved by special indulgence. The reason why devise of land was not acknowledged by law was, no doubt, partly to discourage deathbed gifts in mortmain, a view supported by Glanvill, partly because the testator could not give the devisee that seisin which was the principal element in a feudal conveyance. By means of the doctrine to uses, however, the devise of land was secured by a circuitous method, generally by conveyance to feoffees to uses in the lifetime of he (cuff or to such uses as he should appoint by his will. Up to comparatively recent times a will of lands still bore traces of its origin in the conveyance to uses inter vivos. On the passing of the statute of Uses lands again became non-devisable, with a saving in the statute for the validity of wills made before May 1, 1536. The inconvenience of this state of things soon began to be felt, and was probably aggravated by the large amount of land thrown into the market after the dissolution of the monasteries. As a remedy an act was passed in 1540, and a further explanatory act in 1542-1543.
The effect of these acts was to make lands held in fee simple devisable by will in writing, to the extent of two-thirds where the tenure was by knight service, and the whole where it was in socage. Corporations were incapacitated to receive, and married women, infants, idiots and lunatics to devise. An act of 1660, by abolishing tedure by knight service, made all lands devisable, In the same reign the Statute of Frauds (1677) dealt with the formalities of execution. Up to this time simple notes, even in the handwriting of another person, constituted a sufficient will, if published by the testator as such. The Statute of Frauds renuired, inter alia, that all devises should be in writing, signed by the testator or by some person for him in his presence and by his direction, and should also be subscribed by three or four credible witnesses. The strict interpretation by the courts of the credibility of witnesses led to the passing of an act in 1751-1752, making interested witnesses sufficient for the due execution of the will, but declaring gifts to them void. The will of a man was revoked by marriage and the birth of a child, of a woman by marriage only. A will was also revoked by an alteration in circumstances, and even by a void conveyance inter aims of land devised by the will made subsequently to the tiate of tile will, which was presumed to be an attempt by the grantor to give legal effect to a change of intention. As in Roman law, a will spoke froni the time of the making, so that it could not avail to pass after-acquired property without republication, which was equivalent to making a new will, Copyholds were not devisable before 1815, but were usually surrendered to the,use of the will of the copyhold tenant; an act of 1815 made them devisable simply. Devises of lands have gradually been made liable to the claims of creditors by a series of statutes beginning with the year 1691.
The history of wills of personalty was considerably different, but to some extent followed parallel lines. In both cases partial preceded complete power of disposition. The general opinion of the best authorities is that by the common law Personal of England a man could only dispose of his whole personal property. property if he left no wife or children; if he left either wife or children he could only dispose of one-half, and one-third if he left both wife and children. The shares of wife and children were called their pars rationabilis. This pars rationabilis is expressly recognized in Magna Carta and was sued for by the writ de rationabili parte. At what period the right of disposition of the whole personalty superseded the old law is uncertain. That it did so is certain, and the places where the old rule still existed--the province of York, Wales and the City of London--were regarded as exceptions. The right of bequest in these places was not assimilated to the general law until comparatively recent times by acts passed between 1693 and 1726. A will of personalty could be made by a male at fourteen, by a female at twelve. The formalities in the case of wills of personalty were not as numerous as in the case of wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the gift was of 30 or more, to the restrictions contained in the Statute of Frauds. The witnesses to a written will need not be "credible," and it was specially enacted by an act of 1705 that any one who could give evidence in a court of law was a good witness to a will of personalty. A will entirely in tile testator's handwriting, called a holograph will, was valid without signature. At one time the executor was entitled to the residue in default of a residuary legatee. But the Executors Act 1830 made him in such an event trustee for the next of kin.
Jurisdiction over wills of personalty was till 1858 in the ecclesiastical courts, probate being granted by the diocesan court if the goods of the deceased lay in the same diocese, in the provincial court of Canterbury (the prerogative court) or York (the chancery court) if the deceased had bone notabilia, that is, goods to the value of £5 in two dioceses. The ecclesiastical jurisdiction was of a very ancient origin. It was fully established under Henry II, as it is mentioned by Glanvill. In the city of London wills were enrolled in the Court of Hustings from 1258 to 1688 after having been proved before the ordinary. Contested cases before 1858 were tried in the provincial court with an appeal originally to the Court of Delegates, later to the judicial committee of the privy council, There were also a few special local jurisdictions, courts baron, the university coufts, and others, probably for the most part survivals of the pre-Conquest period, when wills seem to have been published in the county court. The ecclesiastical courts had no jurisdiction over wills of land, and the common law courts were careful to keep the ecclesiastical courts within their limits by means of prohibition. No probate of a will of land was necessary, and title to real estate by will might be made by production of the will as a document of title. The liability of the execrator and legatee for the debts of the testator has been gradually established by legislation. In general it is limited to the amount of the succession. Personal liability of the executor beyond this can by the Statute of Frauds only be established by contract in writing.
Such were the principal stages in the history of the law as it affected wills made before 1838 or proved before 1858. The principal acts now in force are the Wills Act 1837, the amending act of 1852, the Court of Probate Act 1857, the Judicature Acts 1873 and 1875 and the Land Transfer Act 1897. All but theacts of 2837 and 1852 deal mainly with what happens to the will after death, whether under the voluntary or contentious jurisdiction of the Probate[?] Division. Some of the earlier acts are still law, though of little importance since the more modern and comprehensive enactments.
The testamentary jurisdiction of the archdeacon's court is alluded to by Chaucer in the "Friar's Tale," but it was afterwards completely superseded by the bishop's court.
The earliest on the statute roll is an act of Henry III (1236), enabling a widow to bequeath the crops of her lands. Before the Wills Act uniformity in the law had been urgently recommended by the Real Property Commissioners in 1833. It appears from their report that at the time of its appearance there were ten different ways in which a will might be made under different circumstances.
The act of 1837 affected both the making and the interpretation of wills. Excluding the latter for the present, its main provisions were these. All property, real and personal, and of whatever tenure, may be disposed of by will. If customary freeholds or copyholds be devised, the will must be entered on the court rolls. No will made by any person under the age of twenty-one is valid. Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. It is usual for the testator and the witnesses to sign every sheet. Publication is not necessary. A will is not void on account of the incompetency of a witness. Gifts to a witness or the husband or wife of a witness are void. A creditor or executor may attest. A will is revoked (except where made in exercise of a power of appointment of a certain kind) by a later will. or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances. Alterations in a will must be executed and attested as a will. A will speaks from the death of the testator, unless a contrary intention appear. An unattested document may be, if properly identified, incorporated in a will, but such a document, if executed subsequently to the will, is inoperative.
Rules of interpretation or construction depend chiefly on decisions of the courts, to a smaller extent on statutory enactment. The law was gradually brought into its present condition through precedents extending back for centuries, especially decisions of the court of chancery, the court par excellence of construction, as distinguished from the court of probate. The court of probate did not deal unless incidentally with the meaning of the will; its jurisdiction was confined to seeing that it was duly executed. The present state of the law of interpretation is highly technical. Some phrases have obtained a conventional meaning which the testaters who used them probably did not dream of. Many of the judicial doctrines which had gradually become established were altered by the Wills Act.
These provisions of the act have since that time themselves become the subject of judicial decision. Among other provisions are these, most of them to take effect only in the absence of a contrary intention. A residuary devise is to include estates coitiprised in lapsed and void devises. A general gift of the testator's lands is to include copyholds and leaseholds. A general gift of real or personal estate is to include real or personal estate over which the testator had a general power of appointment. A devise without words of limitation is to pass the fee simple. The words "die without issue," or similar words, are to mean die without issue living at the time of the death of the person whose issue was named, not as before the act, an indefinite failure of issue, an estate tail being thus created. Trustees under an unlimited devise are to take the fee simple. Devises of estates tail are not to lapse if the devisce, though he predeceased the testator. left issue inheritable under the entail. Gifts to children or other issue leaving issue living at the testator's death are not to lapse. Rules of interpretation founded on principles of equity independent of statute are very numerous, and for them the works devoted to the suoject must be consulted. Some of the more important, stated in as general a form as possible, are these. The intention of the testator is to be observed. This rule is called by Sir E Coke the pole star to guide the judges. There is a presumption against intestacy, against, double portions, against constructing merely precatory words to import a trust, etc. One part of the will is to he expounded by another. Interlineations and alterations are presumed to have been made after, not as in deeds before, execution. Words are supposed to be used in their strict and primary sense. Many words and phrases, however, such as "money," "residue" and "issue" and other words of relationship, have become invested with a technical meaning, but there has been a recent tendency to include illegitimate children in a gift to "children." Evidence is admissible in certain cases to explain latent ambiguity, and parol evidence of the terms of a lost will may be given as in the famous case of Sugden v. Lord St Leonards (1876), 1 Prob. Div. 154.
A will may be void, in whole or in part, for many reasons, which may be divided into two great classes, those arising from external circumstances and those arising from the will itself. The main examples of the former class are revocation by burning, tearing, etc., by a later will, or by marriage of the testator (except as below), incapacity of the testator from insanity, infancy or legal disability (such as being a convict), undue influence and fraud, any one of which is ground for the court to refuse or revoke probate of a will, A will being ambulatory is always revocable, unless in one or two exceptional instances. Undue influence is a ground upon which frequent attempts are made to set aside wills. Its nature is well explained in a judgment of Lord Penzance's: "Pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. There is nothing corresponding to the querela inofficiosi testamenti, but unnatural provisions may be evidence of mental defect. The circumstances appearing on the face of the will which make it open to objection may either avoid it altogether or create a partial intestacy, the will remaining good as a whole. Where the will is not duly executed, e.g. if it is a forgery or if it is not signed by the testator or the proper number of witnesses, the will is not admitted to probate at all. Where it contains devises or bequests bad in law, as in general restraint of marriage, or tending to create perpetuities, or contrary to public policy, or to some particular enactment, only the illegal part is void. A remarkable instance is a well-known case in which a condition subsequent in a devise was held void as against public policy, being a gift over of the estate devised in case the first devisee, the eldest son of an earl, did not before his death obtain the lapsed title of duke of Bridgewater.
There are some wills of an exceptional kind which demand special notice. The King. It was resolved in parliament in Richard II's reign (1392) that the king, his heirs and successors, might lawfully make their testaments.i in some later cases parliamentary authority has been given to royal wills, in others not. The executors of Henry IV were confirmed in their office by letters patent of Henry V, those of Henry V by parliament. The largest testamentary powers ever conferred on an English king were given to Henry VIII by an act of 1533-1534, empowering him to limit and appoint the succession to the crown by will, in default of children by Jane Seymour or any future wife. By 39 & 40 Geo. III c. 88 the king and his successor may devise or bequeath their private property. No court, however, has jurisdiction to grant probate of the will of a king.
As a general rule wills deal with property, but even at common law a will simply appointing a guardian was good. The common law was superseded by an act of 1660, under which a father may dispose of the custody of his unmarried infant children by will. The Guardianship of Infants Act 1886 extended such powers in certain cases to the mother.
At British common law a married woman could not (with a few exceptions) make a will without her husband's licence and consent, and this disability was specially preserved by the Wills Acts of Henry VIII and of 1837. A common mode of avoiding this difficulty was for the husband to contract before marriage to permit the wife to make an appointment disposing of personalty to a certain value. Courts of equity from an early time allowed her, under certain restrictions, to make a will of property held for her separate use. In some cases her husband could dispose of her property by will, in others not. The law as it existed previously to 1883 is now practically obsolete, the Married Women's Property Act 1882 enabling a married woman to dispose by will of any real or personal property as her separate property as a feme sole without the intervention of any trustee. The act also enables a married woman who is executrix of a will to act as if she were a feine sole. The Married Women's Property Act 1893 extended the act of 1382 by making it unnecessary for the will of a married woman to be reexecuted or republished after the death of her husband.
Before 1870 an alien enemy resident in England could only dispose of property by will with the king's licence. The Naturalization Act 2870 enables him to do so as fully as a natural-born British subject. But if he be an alien domiciled abroad he cannet avail himself of Lord Kingsdown's Act (see below). Soldier and Sailor-Wills of soldiers in actual military service, and of sailors, are subject to special legislation, and are excepted from the operation of the Wills Act. The privilege only applies to wills of personal estate. Such wills may usually be made when the testator has attained the age of fourteen, and are not revoked by marriage only but by marriage and the birth of a child. Wills of soldiers on an expedition may be made by unattested writing or by nuncupative testament before two witnesses. Wills of petty officers and seamen in the navy, and of marines, as far as relates to their pay or prize-money, mtist be attested by an officer, and wills made by a seaman in the merchant service must, if made at sea, be attested by the master or mate, if made on land by a superintendent of a mercantile marine office, a minister of religion, justice of the peace, or consular or customs officer. See the Merchant Shipping Act 2894, 5. 177. The wills of prisoners of war are subject to special regulations, and the Admiralty may at its discretion waive the due execution of wills in other instances. The effects of seamen, marines and soldiers, killed or dying in the service, are exempt from duty. Pay, wages, prize money and pensions due to persons employed in the navy may be paid out without probate where the whole assets do not exceed £32. The Board of Trade may at its discretion dispense with probate of the will of a merchant seaman whose effects do not exceed £50 in value. By an act passed in 1868 the existing exemptions are extended to the sum of £100 in the case of civil service pay or annuities, of civil or military allowances chargeable to the army votes, and of army prize money.
A will made under a power of appointment is not revoked by marriage when the real or personal estate thereby appointed would not in default of appointment pass to the testator's executor or administrator or to the next of kin. Before the Wills Act a will exercising a power of appointment had to conform to any special requisitions in the power, but since the act the power is duly exercised if executed and attested like an ordinary will.
In the register counties memorials of wills affecting lands in those counties must be registered. Member of friendly society, etc. Members of friendly, industrial and provident societies, depositors in savings banks, and servants in certain public offices, may under the pro visions of numerous acts make a nomination to an amount not exceeding £100. Such nomination is practically equivalent to a will, and may be made at the age of sixteen.
At common law there could be no larceny of a will of lands. But now by the Larceny Act of 1861 stealing, injuring or concealing a will, whether of real or personal estate, is punishable with penal servitude for life. Forgery of a will (at one time a capital crime) renders the offender liable to the same penalty. Fraudulent concealment of a will material to the title by a vendor or mortgagor of land or chattels is, by the Law of Property Amendment Act 1859, a misdemeanour punishable by fine or imprisonment or both. It should be noticed that a. contract to make a will containing provisions in favour of a certain person or certain persons is valid if it fulfil the requirements of the law regulating contract. A good example is Synge v. Synge (1894) I K.B. 466.
The principal authorities for the English law are, for the formalities, Sir EV Williams, Executors; Holdsworth and Vickers, Law of Succession; J Williams, Wills and Succession; for the construction, the works of Sir James Wigram and of Messrs Jarman, FV Hawkins and Theobald. Precedents will be found in Hayes and Jarman's Concise forms of Wills, and in ordinary collections of precedents in conveyancing. For comparative law see E Lambert, Le Regime successoral (Paris, 1903).
The act of 1837 applied to Ireland. The main difference between the law of the two countries is that in Ireland a bequest for masses land for the repose of the testator's soul is valid, provided that re a" ' the masses be public, in England such a bequest is void as tending to superstitious uses.
Up to 1868 wills of immovables were not allowed in Scotland. The usual means of obtaining disposition of heritage after death was a trust disposition and settlement by deed depraesenti, under which the truster disponed the property to trustees according to the trusts of the settlement, reserving a life interest. Thus something very similar to a testamentary disposition was secured by means resembling those employed in England before the Wills Act of Henry VIII. The main disadvantage of the trust disposition was that it was liable to be overthrown by the heir, who could reduce ex capite lecti all voluntary deeds made to his prejudice within sixty days of the death of his ancestor. In 1868 the Titles to Land Consolidation Act made it competent to any owner of lands to settle the succession to the same in the event of death by testamentary or mortis causa deeds or writings. In 1871 reduction ex capite lecti was abolished. A will of immovables must be executed with the formalities of a deed and registered to give title. The disability of a woman as a witness was removed by the Titles to Land Consolidation Act. As to wills of movables, there arc several important points in which they differ from corresponding wills in England, the influence of Roman law being more marked. Males may make a will at fourteen, females at twelve. A nuncupative legacy is good to the amount of £100 Scots (£8, 6s. 8d.), and a holograph testament is good without witnesses, but it must be signed by the testator, differing in this from the old English holograph. By the Conveyancing Act 1874 such a will is presumed to have been executed on the date which it bears. Not all movables can be left, as in England. The movable property of the deceased is subject to jus relictae and legitim. See McLaren, Wills and Succession, for the law, and Judicial Styles for styles.
By the constitutions of many states laws giving effect to informal or invalid wills are forbidden. The age of testamentary capacity varies very much. Eighteen is a common one. Full liberty of disposition is not universal. Homesteads generally, and dower estates frequently, are not devisable. In some states only a disposable portion of the property can be left, so that children cannot be disinherited without good cause, and in some children omitted in a will may still take their share. It is frequently provided that a certain amount must be left to the widow. Louisiana followed French law, by which the testator can under no circumstances alienate by will more than half his property if he leave issue or ascendants. In dome states a married woman may not leave more than half her property away from her husband. Some require the husband's consent and subscription to make the will of a married woman valid. Nuncupative and holograph wills are in use. The former are confined to personalty and must generally be reduced to writing within a short time after the words are spoken. In Louisiana the mystic or sealed will still exists. The number of witnesses necessary for the validity of a will of any kind is usually two, sometimes three. Wills of soldiers and sailors are privileged, as in England. There are several decisions of state courts that belief in spiritualism does not of itself constitute testamentary incapacity.
See Jarman, American edition by Randolph and Talcott.
The law is mainly contained in ss. 967-1074 of the Code Napoleon. Wills in France may be of three kinds:
Legatees and their blood relations to the fourth degree may not be witnesses. Nuncupative wills are not recognized. Soldiers' and sailors' wills are subject to special rules as in most other countries. Full liberty of disposition only exists where the testator has no ascendants or descendants, in other cases his quantile disponible is subject to reserve; if the testator has one child he may only dispose of half his estate, if two only one-third, if three or more only one-fourth; if he has no descendants but ascendants in both lines he may dispose of half, if ascendants in one line only he may dispose of three-fourths. The full age of testamentary capacity is twenty-one years, but minors over the age of sixteen may dispose by will of half of the estate of which they could dispose had they been of full age. There is no restriction against married women making wills. A contract to dispose of the succession is invalid, s. 791.
The civil codes of southern Continental Europe are in general accordance with the French law.
Most of the law will be found in the Bürgsrliches Gesetzbuck, ss. 2064-2273. A holograph will, either single or joint, is allowed. Other wills must be declared before a judge or notary or (outside Germany) a consul. Two witnesses are required, unless the witness be a notary or the registrar of the court, who is sufficient alone. The formalities may be relaxed in certain cases, such as imminent death, a state of siege, a prevailing epidemic, etc. Descendants, ascendants and the husband and wife, are entitled to compulsory portions (pflicht-teilsberechligt). But those prima facie entitled may be deprived of their share for certain specified kinds of misconduct. A contract to make any specified testamentary disposition is inoperative. But a contract of inheritance (Erbvertrag) made inter mvos by direct disposition is valid in certain cases and will operate on the death of the contractor. The modes of revocation are much the same as in England (except marriage). But there is one peculiar to Germany, the inconsistency of a will with an Erbvertrag; in such an event the will is wholly or pro tanto revoked.
There are three main directions which the opinion of jurists and the practice of courts have taken:
Testamentary capacity is generally governed by the law of the testator's domicil at the time of his death, the form of the instrument in most countries either by the law of his domicil or the law of the place where the will was made, at his option. The old rule of English law was to allow the former alternative only. The law was altered for the United Kingdom in 1861 by the Wills Act 1861 (known as Lord Kingsdown's Act), by which a will made out of the United Kingdom by a British subject is, as far as regards personal estate, good if made according to the forms required by the law of the place where it was made, or by the law of the testator's domicil at the time of making it, or by the law of the place of his domicil of origin. Subsequent change of domicil does not avoid such a will. Another act passed on the same day, the Domicile Act 1861, enacted that by convention with any foreign government foreign domicil with regard to wills could not be acquired by a testator without a year's residence and a written declaration of intention to become domiciled. By the same act foreign consuls may by convention have certain authority over the wills and property of subjects of foreign states dying in England.
In the United States some states have adopted the narrow_ policy of enacting by statute the old common law rule, and providing that no will is valid unless made in the form required by the law of the state of the testator's domicil. The capacity of the testator, revocation and construction of a will, are governed by the law of the domicil of the testator at the time of his death-except in cases affected by Lord Kingsdown's Act, as he must be supposed to have used language in consonance with that law, unless indeed he express himself in technical language of another country. A good instance is Groos' Case (1904), Prob. 269, where it was held that the will of a Dutch woman (at the time of her death domiciled in England) duly made in Holland was not revoked by her marriage, that being no ground of revocation by the law of Holland.
The persons who are to take under a will are decided by different rules according as the property is movable or immovable, the former being governed by the law of the domicil, the latter by the Lex loci rei sitae. It was held, however, in 1881 by the court of appeal in England that, under the will of an Englishman domiciled in Holland, leaving personal property to children, children legitimated per subsegitens matrimonium could take, as they were legitimate by the law of Holland, though not by the law of England (re Goodman's Trusts, 17 Ch. D. 266). This principle was carried further in re Grey's Trusts (1892), 3 Ch. 88, where it was held that a legitimated child was entitled to share in a devise of English realty. But it is to be noted that a person born out of lawful wedlock, though legitimated, cannot succeed as heir to real estate in England (Birtwhistle v. Vardill, 2 Cl. and F. 895). A will duly executed abroad is generally required to be clothed with the authority of a court of the country where any property affected by the will is situate.