HC Deb 09 June 1857 vol 145 cc1441-53

SIR FITZROY KELLY rose to move for leave to introduce a Bill to give validity and effect to the wills of British subjects made abroad. He said that it might not be known to the Members of the House generally, or even to some of the legal profession, that by the law, as it stood at present, if a British subject, after making his will in strict conformity with the law of England, went permanently, and without any intention of returning to the United Kingdom, to reside in any foreign country or colony the law of which differed from the law of this country, the result would be that after death his will, though it might be attested and drawn in all respects in conformity with the statutes of wills and the law of this country, would be set aside and his intentions defeated. His personal property would pass to the next of kin, or whoever according to the law of the foreign country in which he was held to be domiciled at the time of his death, would be entitled to it. Any subject of the realm, it was well known, might make his will, provided it were executed by himself and attested by two witnesses, disposing of his whole estate, real and personal; but this law, allowing an Englishman to dispose of his property at his own free will and pleasure, was most unduly controlled by certain decisions pronounced by courts of law which had introduced a state of things that, in his humble opinion, loudly called for alteration and remedy. The first decision on the point occurred in the case of Stanley v. Bernes, the facts of which were as follows:—An Irish gentleman, who was a British subject, went to Portugal during the late war, and under the political circumstances of the time, and in order to protect his property, he became naturalized in that country. In the year 1827 he died, leaving a considerable amount of personal property, both in Portugal and in Ireland. With regard to the property in Portugal, he had executed a will according to the form required by the Portuguese law, and no question arose upon that; but in order to dispose of his personal property in Ireland, he had sent for an English attorney to execute a will according to the English form, and that will was executed in strict conformity with English law. The property thus bequeathed was left partly to a legitimate son and partly to a natural child, and, after the death of the testator, upon probate being applied for the application was opposed by the legitimate son, who insisted that the will was void in law because it had not been made according to the law of Portugal, in which country he insisted that his father had become domiciled. Now, the question of domicile was one which always gave rise to the most serious difficulties, nor was there any point in the law of England which was involved in greater doubt or created more litigation. Whether a person went to a place animo manendi or animo revertendi was always a difficult thing to prove, and all kinds of witnesses—chambermaids, servants, and people of that sort had to be brought forward to repeat all the gossip they had ever heard fall from the testator or from anybody in his presence without contradiction from him, with respect to his intentions. If it was not clear that he intended to return home, and had made his will according to the English forms, that will would be disentitled to probate, and would be set aside. This was settled by the case to which he had referred. That case was first brought before the Prerogative Court in this country, and a very learned and elaborate judgment was pronounced by Sir John Nichol to the effect that, inasmuch as a British subject could not throw off his allegiance to the British Crown, no matter where he resided or intended to reside, even if he had sworn allegiance to a foreign country, he was competent to make a will according to the forms of England and English law, and probate was decreed. This case was then carried to the Court of Delegates, on appeal, and was heard by Lord Wensleydale (then Baron Parke) and other judges. After an elaborate argument, judgment was pronounced, overruling the decision of Sir John Nichol, and holding that by the law of England, Mr. Stanley, from having found a domicile in Portugal, had become incapacitated to dispose of his personal property by will otherwise than according to the law of Portugal, and by reason of that incapacity the will was disentitled to probate, was void in law, and was accordingly set aside. From that time, such had been the law of England, but although that judgment was pronounced move than twenty-seven years ago, it had never acquired general notoriety, and was scarcely known beyond Doctors' Commons, and perfectly unknown to the great majority of British subjects residing abroad. The mischievous consequences of that decision were, however, limited, if not obviated, a few years after, in the case of Collier v. Rivaz. In that case a British subject had acquired a domicile at Brussels, and made a will according to the English form, disposing of some considerable property in England. On his death, probate was applied for. It was held that the executors under the will were entitled to probate, because it appeared that, although the testator had become domiciled in Brussels, yet by the Code Napoleon, which then prevailed in Belgium, the will of a foreigner, if made according to the forms of law in his own country, was a valid will. That decision remained in force until within the last few weeks, when the case of Bremer v. Freeman came before the Privy Council. In that case it appeared that a lady named Calcraft, who had been travelling about the Continent, ultimately went to Paris, and resided there for some time with her sister, who afterwards died, and was buried in Père la Chaise. The surviving sister remained some time in France, and while residing there sent to England for an attorney of eminence to make her will. The lady died a few years subsequently, and the executors of her will had applied for probate in the Prerogative Court in this country. The granting of probate had, however, been opposed on the ground that the will was void, inasmuch as at the time at which it had been drawn up the testatrix had been domiciled in France. The answer to that objection had been that, in accordance with the French law itself, the instrument was valid, as being made by a British subject resident in France in accordance with the law of England. In order to establish that proposition a great deal of evidence had been adduced, and the case had been submitted to the consideration of no less than five of the most eminent French jurists, who had arrived at the conclusion that the will was valid, and, as a consequence, entitled to probate. Three eminent French lawyers had, however, come to an opposite decision, stating it to be their opinion that the instrument, in order to be of force, should have been drawn up in accordance with the law of France; and one alarming consequence of the application of the law of France to British subjects, if this opinion were correct, was that a British subject could not leave his property according to his own free will and pleasure, but a person making a will there must suffer a certain proportion of his property to go to certain near relations, who, by the law of France, could not be disinherited. These gentlemen gave the still more alarming opinion, that if the lady had not been permanently domiciled in France, but had merely taken up her residence there temporarily, the rule locus regit actum would prevail, and that her will, though framed in strict accordance with the law of her own country, would still be ineffectual. The question had finally been submitted to the Judicial Committee of the Privy Council. Unhappily—he meant unhappily unless through the interposition of Parliament it should lead to an alteration of the law—a majority of the Privy Council supported the opinion of the three lawyers, and set aside the opinion of the five eminent jurists in France. The Privy Council had given a decision different from that which had been pronounced in Collier v. Rivaz, and had determined that the will must, in accordance with the English law, be held to be invalid. This decision had excited the greatest alarm among English residents abroad, as well as persons in this country. Now, since he had given notice of the Motion which he was about to submit to the House, he had received numerous letters from British subjects resident in Paris and elsewhere, from attorneys practising in various parts of France, and diplomatists of eminence and great experience; and he felt bound to say that neither in those letters nor from the communications which he had held with several members of the legal profession in this country had he been able to ascertain a shadow of a reason why the will of a British subject, executed in compliance with the forms which English law required to be observed in the framing of such instruments, was to be regarded as invalid because the testator happened to reside in Paris or at Rome, or at Constantinople. Among its many mischievous results, it occurred forcibly to his mind that one of the most mischievous was, that in every case in which probate of the will of a British subject domiciled abroad was sought to be obtained, and the validity of the instrument was disputed, it became necessary, besides establishing that the testator was of sound mind and had complied with the necessary formalities, to resort to that most perplexing, expensive, and tedious process of endeavouring to ascertain where the testator had been domiciled at the time when the will had been executed. That was a feature in these cases which had of late years led to a greater amount of litigation than any other with which he was acquainted. And in addition to this, the fact of it being held that a permanent residence created a domicile in a foreign country would necessitate in any case where such residence was shown, an inquiry as to the law of that foreign country in which the will was made in respect to testacies and intestacies. In the case of Lord Hertford, on the other hand, it had been proved that he had resided in France for some time, that he had afterwards gone to Milan, thence to Naples, and subsequently had been said to be domiciled in more than one of the German States. Now, in order to establish the validity of a will made under such circumstances it became necessary to inquire into the law, not of one alone, but of all those several countries; and the House, he thought, could scarcely fail to be of opinion that the existence of such a state of things was productive of enormous evil. It was in order to provide a remedy for that evil that he proposed in the Bill which he was about to ask for leave to introduce to enact that all wills, codicils, and testamentary papers duly executed and attested by a British subject in accordance with the prescribed forms as laid down by the law of England, and duly attested, should be held to be valid in this country, no matter where the testator might have been domiciled at the time at which the instrument happened to have been drawn up. But he begged to be distinctly understood that he did not propose to interfere with the subjects or the law of any foreign country, nor with the jurisdiction of foreign courts over the property of Englishmen in foreign countries. If a will were made by a Portuguese in Portugal or by a Frenchman in France he did not wish to interfere with the testamentary disposition of either of these testators. His Bill did not go to invalidate the wills of the subjects of any country made in their own country. These were the main features of the Bill which he asked permission to lay on the table of the House. In conclusion, he would also observe that the Bill contained proviso which he had introduced into it after considerable doubt, the object of which was that the measure should not affect any wills which now formed the subject of judicial investigation, or which, owing to the decease of the testator, were already in full legal operation. He now felt that inconvenience would arise in the cases of wills made in foreign countries, and which were still to be carried into effect, the testators being dead; but on the whole he had arrived at the conclusion that he could not make the Bill retrospective in such cases, and had therefore inserted the proviso the nature of which he had just stated. Should his Bill pass into a law, it would have the effect of restoring that liberty to British subjects of which they had been deprived by a series of decisions utterly unfounded upon any principle of justice between man and man. The hon. and learned Member concluded by moving for leave to bring in a Bill to give validity and effect to the Wills of British subjects abroad.


seconded the Motion. The evil which the Bill was designed to correct was one of immense magnitude, and he regretted that in the late case of Bremer v. Freeman—a decision which had taken the profession by surprise—the Judicial Committee of the Privy Council could not find reasons for coming to an opposite conclusion. That decision, so far from furthering the intention of the testatrix, went to disappoint it. The testatrix had done nothing to shake off her right as a British subject. She had, it was true, for several years resided abroad; but the effect of the decision of the Privy Council was, that while in every other respect that lady must be considered a British subject, in the disposition of her properly she must be regarded as a foreigner. Seeing that many thousands of our countrymen resided on the Continent it was a serious thing that in the disposal of the property or such persons a question such as that now under discussion should arise. The question of domicile which was raised in such cases was one of the most difficult as well as expensive that could come before the courts. A case was now going on in the Court of Chancery in which a gentleman of very large property, of peculiar and eccentric habits, who died four or five years ago, left the bulk of his property, amounting to about £100,000, to found a charity in the town of Southampton. It was supposed at first that the only question for the court was whether the words were sufficient to found a charity, but as it appeared in the progress of the suit he had resided in France for many years, at first at Boulogne and then at Paris, though having all his property here, and coming occasionally to see it, the question was suggested whether, although his will was made according to the English form, he had not acquired a French domicile. A special examiner was appointed to take the evidence on this subject, and to illustrate the difficulty and expense of these inquiries he might state that the examiner had been engaged for fourteen days in England and forty-two in France in taking evidence on the question whether that English gentleman, who had resided in France for a number of years, had not thrown off his English and acquired a French domicile, and the case still stood for decision. He rejoiced that his hon. and learned Friend had brought in a Bill on the subject, and he trusted that every facility would be afforded him by the Government in passing it through Parliament. He was afraid that, after the decisions of the Privy Council declaring some of these wills invalid, it would be going too far to say that the Bill should be retrospective in its operations, yet it might be worthy of consideration whether Parliament could not justly go even to this extent, and he should greatly rejoice to see the measure made retrospective if it could be justly done.


said, that the subject to which his hon. and learned Friend the Member for Suffolk had invited attention was one of no common importance, and he trusted that it would not be treated by the House as a legal question, but one of general importance, which every Member of that House was competent to appreciate and form an opinion upon. He did not intend to oppose the introduction of the Bill, coming, as it did, from such high authority, and also because the subject itself was unquestionably one deserving of discussion, but he must entreat the attention of the House to the difficulties of the subject and the qualifications with which his vote in favour of leave to introduce the Bill must be given. They would all agree with him that it was extremely desirable for the jurisprudence of every country to preserve untouched and unimpaired those maxims of law which were common to the jurisprudence of all civilized countries. Nothing could be more important than that there should be a community of thought between the civilized nations of Europe on questions of perpetual recurrence. Not only would there be the greatest inconvenience, but the greatest amount of distress, if the rule in one country were different from that which prevailed in another. The origin of the rule which had been impugned by his hon. and learned Friend was a general maxim that had prevailed in Europe from the earliest time—namely, from the earliest establishment of the principles of Roman Law. That maxim was expressed in the words—mobilia sequuntur personam, which meant that the personal estate of the testator accompanied him wherever he might reside and become domiciled, and thence he acquired the right of disposing of it and dealing with it according to the law of that country. In consequence of that rule of law, if a man died in a foreign country, in which he might be domicile, the distribution of his personal property fell naturally within the jurisdiction of the courts of that country in which he was domiciled at the time of his death. This was a universal rule in all the countries of civilized Europe, and they had conceded to us, and we had conceded to them, that the judges of the country in which the testator was domiciled at the time of his death became the persons to determine the question of testacy or intestacy. They could not withdraw the question of testacy or intestacy from those judges without impairing the force of the maxim to which he had referred, and this he (the Attorney General) thought was a dangerous step to take. If there were a common consent on the part of all the nations of Europe to adopt the rule recommended for England by his hon. and learned Friend, there might be less objection to his proposition; but, while there was a want of that common consent, the making of an exceptional experiment in England was much to be deprecated. He (the Attorney General) was opposed to the introduction into this country of a rule peculiar to itself that would derogate from the universally recognized maxim of jurisprudence handed down to us through a long succession of ages, and which undoubtedy had the great advantage that every nation in Europe knew with certainty the principle that governed this particular case. There was an inconvenience which his hon. and learned Friend's Bill would not in the smallest degree touch he meant the present uncertainty of the law in determining questions of domicile. He agreed that the question of domicile of necessity entered into the application of the rule of jurisprudence to which he had alluded; but the difficulty to which the attention of the Legislature ought to be directed would be the furnishing of a rule by which questions of domicile might be decided, rather than to the making of any attempt to engraft on the jurisprudence of this country an exception to the general maxim above described. Some cases of hardship would always accompany adherence to a general rule; but, on the other hand, would there be no practical inconvenience attending the introduction of exceptional legislation? Assuming that we adopted for ourselves a different rule from that followed by other nations, if a person domiciled in France died possessed of property in the French funds and also in the English funds, the result would be that we should be claiming the right here to give effect to a will operative according to our exceptional law, but of no validity according to the French law; and tenfold the amount of difficulty and inconvenience at present experienced would ensue from the conflict between the institutions of the, two countries. Thus the evil which this measure sought to remedy would only be aggravated by its adoption. He regretted that his hon. and learned Friend who had striven with all his great abilities to enforce his views on the Privy Council but without success, should not have allowed a longer time to elapse before he appealed to that House; because the decision of the Privy Council was in strict conformity with the judgments of all the eminent men on the bench who were qualified to determine the question at issue. It was most inconvenient that a decision, which at the moment naturally appeared to be wrong in the eyes of the advocate against whom it was given, should be brought before Parliament while the excitement to which the subject had given rise still precluded the cool deliberation essential to wise legislation. He was sorry, therefore, that the hon. and learned Gentleman proposed to introduce this Bill, contemplating, as it did, the establishment in this country of a rule that would not be common to the rest of Europe. It was most desirable, now that the interchange between different countries was so rapid, easy, and general, that there should be as few conflicts between their respective systems of jurisprudence as possible, and that the judgments of the courts of one nation should be readily accepted by the courts of another; but if they set up a peculiar law of our own in opposition to the law which generally prevailed, they should raise up a great obstacle to the attainment of that object. The Government were not, however, disposed to resist the introduction of the Bill, although, for the reasons he had assigned, they could not promise the hon. and learned Gentleman their co-operation in passing it through its subsequent stages. He should ask hon. Gentlemen to exercise their own opinions on this measure when it came before them, and not accede to it unless they were of opinion that it was required, not merely because inconvenience had been felt in a particular case, but as an improvement on that measure of jurisprudence which England had so long held in common with the other nations of Europe.


asked the hon. and learned Gentleman who had moved for leave to bring in the Bill for an explanation as to whether the measure proposed would in any way interfere with the jurisdiction of the legal tribunals of other countries in respect of property in those countries?


would ask the permission of the House to reply to the question just put to him, and to make a few observations in answer to some of the statements of his hon. and learned Friend (the Attorney General). He meant to have stated in introducing the Bill that he did not seek in any way to interfere with the jurisdiction of foreign countries in respect of property situate in those countries. It would not be competent to the British Parliament to legislate for foreign countries, and, therefore, he could not propose to interfere with the jurisdiction appertaining to the tribunals of those, countries. But with reference to the particular question, he conceived, however, that by the law of France, when a British subject, whether he happened to be residing there or not, made a will according to the forms of the law of England, and died possessed of property in France, if the probate of the will were taken to France, every Court in that country would give effect to it. There were instances of this being the case within his own experience, and he believed that by the comity of nations the Courts of every other nation in Europe would pursue a similar course. But if in France, or any other country in Europe where the property of the deceased person was found, whether by reason of the residence of the deceased there, or for any other reason, the law would not recognize and give effect to the probate of a will granted by our own Courts, then the Bill would not interfere with the law of that country. He might say in general that the measure would have no effect, and did not profess to have any effect, upon the law, or the administration of the law, in any foreign country whatever. He joined with his hon. and learned Friend the Attorney General in appealing, not to members of the legal profession alone, but to every intelligent Gentleman who had a voice in either House of Parliament, upon the single, simple, and plain question which was raised by the Bill. It was a question, not of law, but of policy—a question of policy in which every subject of this realm who might by possibility go abroad, reside abroad, or even die abroad, possessed or might possess a deep personal interest. The question was, whether it was expedient, if a British subject residing abroad sought to dispose of his properly, and to provide for the different necessities of his family, by means of a British will made according to the forms of British law, that that will should be valid or void? And when the measure should have been discussed, and fully understood by all the Members of the House, he should be greatly surprised if it met with a single dissentient voice.


said, that responding to the appeal which the Attorney General had made to the common sense of the House, he would thus early in the debate make this one observation—that, after all, the gist of the matter was, what should define domicile, and did not so much turn on the comity of nations. He agreed with the Attorney General as to that; but surely there was nothing which could so clearly define the animus of domicile as the form in which the testator had made his will! An Englishman goes abroad, and lives there, say twenty years, but left his English will under lock and key in England. Surely there was the strongest proof in this that his animus was to continue a British subject, though he was not domiciled in his fatherland! It seemed to him (Mr. Hope) that on the principle laid down so ingeniously by the Attorney General the House ought to give to the Bill of his hon. and learned Friend that favourable consideration which the Attorney General seemed disinclined to give it, on the plain common-sense principle that the most convincing proof of domicile was formed by that document by which the testator left what belonged to him to his assigns for ever. He hoped his hon. and learned Friend would pass the Bill through all its stages, and that ere long it would become the law of the land, and thus save the travel loving subjects of this country from the frightful danger to which they were exposed from the existing uncertainty on this subject.


regretted that the Attorney General had given a merely qualified approbation to the proposal of his hon. and learned Friend. The only fault which he (Mr. Bowyer) found with it was, that it did not go far enough; and he trusted that when the Bill was in Committee his hon. and learned Friend (Sir F. Kelly) would make it more complete. There were two principles of international law which governed this subject. One was expressed in the maxim, lex loci regit actum, or that the law of the locality in which the act was performed regulated the legality of the act there performed; the other was, that where an act was done to take effect in and having reference to another place than where it was done, it might be valid if executed according to the law of the place where it was to take effect. Now, this Bill proposed to deal with merely the second of those principles, which was only the exception, while the first was the rule. If a marriage were celebrated in a foreign country according to the forms required in that country, that marriage would be held valid in England and all the world over. Domicile had nothing to do with such a case, and the law with regard to a will ought to be the same as with regard to a contract. A person who had occasion to execute a testamentary paper abroad was in a manner compelled to have recourse to such legal assistance as the country in which he happened to be placed supplied. In the case of Lord Hertford, the Privy Council departed from the law of nations. Lord Hertford had executed a codicil to his will in Milan, in the Milanese form, and the Privy Council held that as his Lordship was an English nobleman, with large estates in this country, he could not be presumed to have abandoned the animus revertendi, and they therefore held that the codicil was invalid, Lord Hertford having retained his English domicile, and having executed the codicil in a foreign form. A will executed abroad, according to the law of the country where it is executed, ought to be valid by the law of England, whatever might be the domicile of the party. If they passed an enactment to that effect, they would put an end to two-thirds or more of the difficult questions of domicile which were constantly arising in our Courts, and the decisions upon which were so unsatisfactory. At the same time it would be very desirable and convenient, as his hon. and learned Friend proposed, that an English subject, when in a foreign country, should have the option of making his will according to the law of his own land. Now, how could this clash with the law of the country in which he resided? The will was not intended to take effect in that country; it would operate only in England, and with regard to English property, and it appeared to him that this would be a provision of great practical utility and convenience, and certainly not contrary to any rule of international law.

Leave given. Bill "to give validity and effect, to the Wills of British Subjects made abroad," ordered to be brought in by Sir FITZROY KELLY and Mr. MALINS.