EXECUTION OF WILLS.

HC Deb 11 March 1835 vol 26 cc853-61

Sir John Campbell

moved the second reading of the Execution of Wills Bill.

The Attorney General

did not mean to oppose the principle of the Bill; it was only his intention, at present, to make a few suggestions for the future consideration of his hon. and learned Friend opposite, and those should be with respect rather to some of the details of the Bill. For instance, he thought it important that an infant under twenty-one years of age should be allowed under this Bill to exercise any power he had under the law as it at present stood in making a testamentary disposition. He saw no occasion whatever, for confining, as it was now proposed, the power of making a will to an individual only who had arrived at the age of twenty-one. By the proposal now before the House, a woman who had married and become a widow before she had attained the age of twenty-one—not an unfrequent occurrence, would be rendered incapable of making a will in favour of her children if she died before twenty-one. Another provision in the Bill was, that a Court of Equity should have jurisdiction to make void any Bill of personality upon certain grounds. He thought it extremely objectionable that this power should be altogether taken from the Ecclesiastical Court, and wished that that Court and the Court of Chancery should have a concurrent jurisdiction. In his opinion, the Ecclesiastical Court should retain the power it at present had. As to another provision, he did not understand at all why a female's will should be revoked by her marriage, and a man's not, as was proposed.

Mr. Hume

rose to order. There had been a discussion about the loss of time already. The hon. and learned Gentleman had avowed that it was not his intention to object to the principle of the Bill, and the course he was now adopting, of entering into the details of the measure, was only proper in the Committee.

Mr. Cultar Fergusson

could not agree with the hon. Member for Middlesex. It was true, that the only thing which at that moment could be discussed was the principle of the Bill, but it was impossible to collect the principle except from the details; and it was not only exceedingly convenient for the House to have the details of the Bill brought before its notice in this way; but it was calculated to be of great use hereafter to the Members who should sit in Committee upon this measure.

Mr. O'Connell

said, that even if the decision upon the question of a breach of the rule should be against the hon. and learned Gentleman, he hoped the House would indulge the hon. and learned Gentleman with permission to proceed with the observations he was making upon a Bill of such vital importance as that under discussion.

The Speaker

said, that the rule was undoubtedly for the hon. and learned Gentleman to confine himself to the principle. The principle could only be, as had already been stated, known from the details, and according to one or two decisions of the House, it did not appear that the learned Attorney General was out of order.

The Attorney General

could assure the House, that in his judgment, every detail to which he had adverted embodied within itself a distinct principle. He would then suggest the propriety of making marriage alone a revocation of a will, and so with respect to a birth, for it never could be the intention of any one that children begotten after the making of a will should have been intended to be disinherited. He was not prepared to go along with his hon. and learned Friend in diminishing the principle of security required by the law as it now stood affecting land; he would rather add one to the three witnesses of the will now required than take one from those three, as the Bill proposed. Every one that was added to a number of persons in a fraudulent combination rendered the combination the more difficult and the more easy of exposure. He was not aware, that many practical inconveniences had arisen from requiring three witnesses to a will giving lands, but much mischief might be the result of having only two. Indeed, he thought that a will written throughout by a party himself, and signed and dated by him at the foot, would be much safer to go upon without a witness at all, than to have a will merely signed by the individual whose will it purported to be, and attested by two witnesses. Upon the whole, he would suggest to his hon. and learned Friend, whether it would not be better for him, when there already existed a law with respect to real property which had subsisted for a great succession of years, and had been reduced almost to a state of certainty, the disturbing of which might be very inconvenient—it would not be better for him to bring in his measure in terms calculated to clear up some doubts, and alter some decisions respecting which, he believed, there was but one opinion both in Westminster-hall, and in Doctors'-commons, rather than break in upon the law as at present known and established. When once the law became unsettled, there could be no doubt that that would lead to a series of discussions upon different points of it, perhaps to discussions upon contrary judicial decisions, and there could be no doubt that it would be a long time before it got into the Established State in which it was now. It would be recollected, as a proof of this, that a Bill which had been drawn and prepared by one of the most enlightened and cautious Judges who had ever sat on the Bench (Lord Tenterden) had given rise to almost endless difficulties when its provisions came into operation. He had thought it thus right to point out the principles of the Bill as they occurred to him. There were provisions in it which were above all praise—provisions that would entitle the hon. and learned Gentleman to the gratitude of the House and of the public; those should have his full support, but as to some others, if not altered, he would give his reasons against adopting them at the proper time.

Mr. O'Connell

said, that as to one of Lord Tenterden's acts in particular, it had been drawn with such a degree of looseness, that it was left uncertain when the provisions in it were to commence, and whether they were to take effect upon bygone transactions. He objected to decision-law,—he objected to judge-making law; he considered that the law should be made by the Legislature, legislators availing themselves in the making of it of law decisions, just as philosophers availed themselves of experiments to bring principles into operation. He entertained a different notion of this Bill now to what he had done before, and considered the proposed scheme one that merited the entire approbation of the House. The Bill was intended to do away with anomalies and with fictions that had no existence. In a degree, however, he agreed with some of the observations that had fallen from the learned and hon. Attorney General. He approved highly of the idea of making a uniform rule as to wills; that would prevent litigation, and be the greatest blessing that could be conferred on any nation. He altogether objected to having three or four different forms of proceeding. Let simplification be the rule, and then there would be system, and a stop put to litigation. With respect to the witnessing of wills, there was a great absurdity in that. As regarded personal and leasehold property and even chattel interest, to determine at the expiration of ninety-nine years, no witness was required to the will; yet three witnesses were required to a will to pass freehold property to the amount of 40s. If witnesses were to be required at all, he would say, let the necessity of them be extended to all testamentary documents, and let wills be uniform. For his own part, he had always a great doubt of the propriety of allowing a man, under any circumstances, in extremis, to make a will. He thought it absolutely necessary that in wills especially, giving property to charities, and away from a testator's family, the state of his mind should be unimpeachable.

Dr. Lushington

held it to be the duty of Parliament, in making any alteration in the state of the law, clearly and distinctly to lay down what should be its future intention. If a single loophole was left for application to the discretion of the Judges, the inevitable consequence must be discussion that would involve the meaning of the whole of the enactment, and bring the minds of the country into doubt. His great anxiety was to impress the House with a sense of the high importance there was in providing that whatever might be the form to be prescribed for a will, there should be but one form for all. Be the number of witnesses required what it might, it was vitally essential that it should be the same with respect to all sorts of property given by wills. With respect to the observation that had fallen from the learned Gentleman opposite (the Attorney General), that if the number of witnesses required to a will were dimi- nished there would be less chance of detecting fraud, he could only say, that in all cases of fraud in which he had been concerned, and that had been in almost all affecting personal property that had come before the public for the last twenty years, the detection had almost invariably been in cases where there had been three attesting witnesses. Then as to the point of handwriting. It was so easily forged, that in his opinion mere handwriting should in no circumstances at all be considered as proof of the validity of a will. Then, again, as to the construction to be put upon a will. It was his wish to do away with that necessity for adhering to the strict letter of the law, which had been so beautifully exemplified by Lord Eldon in one of his decisions, in which he said, "I am bound by the principles of law to disappoint every intention which the testator had in making this will." With regard to the execution and the revocation of wills, he thought it was not of much consequence to the subject whether wills, might be revoked by parole declaration or not, but he thought the time was come when the law should be settled by legislative interference, and not leave it to the discretion of Judges to decide in directly different ways. He supported this Bill, because he thought it likely to diminish the business in all the Courts, which could not do otherwise than benefit the country at large.

Mr. Cutlar Fergusson

said, that he could not express too strongly the obligations of the House to his hon. and learned Friend, the Member for Edinburgh, not only for the Bill which was then before it, but for many others which he had brought in, and successfully carried through it. It was highly necessary to do away with the difficulties attending the construction of wills of testators of estates. As to their attestation, he was of opinion that every sanction which was given to wills by the signature of three witnesses would be amply supplied by two signatures. In Scotland two witnesses were considered sufficient for the validity of every will. If the hon. and learned Member for Huntingdon was not satisfied with two, he was sure that twenty would not be sufficient. As to the question of handwriting, in all the countries of Europe, the hand writing of a testator was sufficient to dispense with all notarial attestation, and the only objection which had been brought against its reception was, that forgeries might, and would be frequenly committed. Now, this was a question on which he had very considerable doubt, whether, after all, it was not one of the best modes of proving the validity of a will. He agreed with those hon. and learned Members who had spoken, that there ought to be no difference in wills of real and personal estate: but with regard to the revocation of a will, he was of opinion that it ought not to be presumed that a man intended to do what he had not done. He thought, therefore, that marriage and the birth of a child ought not to be held to be a revocation of a will in the case of a man: when a lady married, matters differed, as she then had no will of her own. He was glad that the Bill had been introduced, as it was of the greatest consequence to the public.

Mr. Pryme

was glad, that the lawyers had no objection to improvement. He thought that personal should have the same safeguards as real property, and to effect this it was necessary to give increased security to personal property, by an uniform execution of wills of all kinds.

Mr. Jackson

thought a difference ought to be made, with respect to attestation, between real and personal property. It seldom happened that the heir-at-law attended the sick bed of the testator, therefore it was advisable that he should have protection; but, on the other hand, the testator was generally in his sickness surrounded by his kindred, which made an equal amount of protection as regarded personal property unnecessary. He was of opinion, that not less than three witnesses ought to be required to attest a will of real property. When parties confederated, though they might agree as to important particulars, it seldom happened that they did not disagree as to minor matters—they were rarely proof against a searching examination in a Court of Justice. He knew a case in which a female servant, who was one of the witnesses, had exactly confirmed the previous statement of the professional man in all that was material, but on examination, she declared the will to have been signed at midnight, whereas the professional man had said it was signed in the forenoon.

Mr. Rolfe

observed, that Lord Mansfield had said, that the Judges were some- times the authorised interpreters of nonsense; for they were bound to give a meaning to what ignorant persons intended, by the modes of expression which they used. He objected to the 34th, 35th, and 36th Clauses, their object being to affix an arbitrary meaning to certain terms. This, he thought, might lead to great difficulties; perhaps, it would be twelve months hence before the interpretation, as provided by the Act, was generally known. He would give one instance of the difficulties that might arise. If a will made a provision in case a person died without issue, the question was, whether the testator meant if the person was without issue at his death, or indefinitely without issue. The Court generally interpreted the meaning to be, without issue at any time.

Sir John Campbell

said, that the subject had been so ably treated by the hon. and learned Member for Dublin, and his hon. and learned Friend, the Member for the Tower Hamlets, that there was but little left for him to remark upon. One great principle of the Bill was, that all property should be devisable. To that no objection had been made. He was sorry that his hon. and learned Friend, the Attorney-General, should oppose the uniformity proposed for the execution of wills. He had, however, the satisfaction to know, that all the Members of the Ecclesiastical Commission, and the present Lord Chancellor, were favourable to that principle. The distinction between real and personal property, had led to the most pernicious consequences. It often happened, that the same will was partially void, and partially valid—void as to the realty, and valid as to the personalty devised. As to the execution of wills, he was afraid that if the Legislature were to say that a man's handwriting should be a sufficient evidence of the validity of a will, no man would take professional advice, and he would be his own lawyer, by which the intentions of the testator would be often defeated; for where he intended to give a fee simple, he would give an estate for life, and where he intended to give a life estate, he would give a fee simple or an estate tail, which might be easily converted into a fee simple. Notwithstanding what had fallen from the hon Member for Falmouth, he hoped for his support to the Bill, and, as no objections were made to its general principle, he should now move that it be read a second time.

Bill read a second time, and referred to a Select Committee.