COMMITTEE.

HC Deb 29 July 1861 vol 164 cc1751-64

Order for Committee read.

THE ATTORNEY GENERAL

said, that it would perhaps be convenient before making the formal Motion that the Speaker do now leave the chair, if he were to extend the few preliminary observations he had to make to the Bill which stood next in order, namely, that respecting the Wills of Personalty by British subjects dying abroad, as no description of that measure—which had much in com- mon with the other—had been given on the second reading; the object of the Bill first in order was to obtain, by convention with such foreign Governments as might think proper to join, a definition of what "domicile" was. The question of domicile had of late forced itself into a good deal of notice before the various tribunals of this country, especially in connection with the wills of British subjects made out of this country. The rule was that the law of the country of a person's domicile at the time of his death should govern the distribution of the personalty left behind him; and very nice questions had arisen as to whether a British subject had at the time of dying or making his will, as the case might be, acquired a foreign domicile, or still retained his British domicile. Much disappointment had been suffered by persons who were entitled in fairness to the property, by the difficulty and expect of having the question decided; and, after all, the decision had often been very unsatisfactory. It would, therefore, be a great advantage if the question "What is domicile?" were settled once and for ever. That, however, could not be done without conventions with foreign Governments, because the tribunals of different countries might take different views. A uniform rule was the main object of the present Bill. It provided that where a convention should have been entered into no British subject resident at the time of his or her death in a foreign country should be deemed, or admitted, under any circumstances, to have acquired a domicile in such country, unless such British subject had resided there for one year immediately preceding his or her decease, and had also deposited in a public office of such foreign country a declaration in writing of his or her intention to become domiciled in such foreign country. This would give most satisfactory evidence of the animus of the testator, by a solemn and deliberate act; and to this part of the measure he apprehended no objection would be raised. There was a corresponding provision with respect to foreigners dying in this country. Then there followed an independent provision of a very valuable kind, to the effect that after a convention on the subject had been made it should be lawful for the Queen in Council to order that whenever a subject of a foreign country should die within the dominions of Her Majesty, and there should be no person at the time of death rightfully entitled to administer to the estate of the deceased, it should be lawful for the consul, vice-consul or consular agent, of the foreign State to which the person belonged, to take possession of the property. The advantage of the corresponding arrangement to this country would be that when a British subject died in a foreign country without a representative on the spot, the British consul would be warranted by the convention in taking possession and administering the property for the moment, and so to provide for the decent interment of the deceased, and prevent any spoliation of the property. Now, there was a Bill standing in the orders, immediately below this, which had come down from the Lords. It was entitled, "Wills of Personalty by British Subjects," and had also reference to those wills as affected by domicile. The object of that Bill was to put an end to the law that the validity of the will depended upon the law of the domicile of the testator. But if the Bill first in order should pass, the evils and mischief arising from the doubt and difficulty of defining what constituted domicile would be very much mitigated; because there would be an authoritative declaration of domicile ratified by convention with foreign Governments. The framers of the Bill with respect to wills of personalty by British subjects abroad had in view the evils resulting from the application of the provision that the law of domicile was to govern the will; but the House, he anticipated, would be of opinion that this second Bill, to which he was referring, went too far, and would produce mischiefs and dangers beyond the evils it was intended to remedy. By this Bill it was provided that the will should be sufficient if made according to the law of the place where it was executed, or the law of the place where the person making the will was domiciled, or the law in force in any part of the United Kingdom. Thus, a London merchant who had never set his foot across the border, going to Paris or Naples, and making his will there, might make his will either according to the law of England or of Scotland. Why should an Englishman having a domicile of origin in England have a choice of this kind? Some years ago great pains were taken to settle the law of wills in England; and if this Bill from the other House became law that measure would be to a considerable extent repealed. A British subject, for example, might be travelling, and, having been some time on the Continent, he might have written an informal in- strument in the nature of a will. That instrument, being found among his effects, although it might not have complied with the formalities of the English law of wills, nor have been intended to be a will, yet, as the instrument might be conformable to the testamentary law of the country—Norway or Sweden, for example—in which he might be travelling, would acquire testamentary validity under the Bill from the Lords. He believed, however, that the Bill he had first mentioned, which had reference to the wills and domiciles of British subjects abroad, would on all hands prove of advantage and facilitate future legislation. He would suggest to his hon. and learned Friend (Sir FitzRoy Kelly) who had charge of the "Wills of Personalty by British Subjects Abroad Bill," not at present to persist in pressing the measure on the House. They would thus have an opportunity of seeing the effect of the first Bill before discussing the second measure. He trusted his hon. and learned Friend would, at all events, defer the second Bill for the present.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."

SIR FITZROY KELLY

said, that he had listened with great surprise to the speech of his hon. and learned Friend the Attorney General, who, without any explanation regarding the state of the law, or of the necessity for amendment, and without any real reasons assigned—on grounds entirely fallacious—called upon the House to approve of the Bill he had brought forward himself, and called upon him (Sir FitzRoy Kelly) to withdraw a Bill which had passed through the House of Lords with general assent and approbation. The attention of both Houses of Parliament had been called to this important subject in 1857 and 1858. The then Attorney General (the present Lord Chancellor) brought forward a Bill, unlike the Bill of his hon. and learned Friend the Attorney General in some points, though certainly with the same object; but as it appeared to be entirely inadequate to the ends proposed, and left the law as unsettled and uncertain as it was before, it did not receive the approbation of the House, and was not pressed. With regard to the Bill which had been introduced into the House of Lords by Lord Kingsdown—the Wills of Personalty by British Subjects Abroad Bill—which his hon. and learned Friend the Attorney General suggested that he should withdraw, he begged to remind the House that in 1857 a Bill much to the same effect not only received the approbation of the House of Commons, but was approved of by the present Prime Minister and the present Secretary of State for Foreign Affairs. It was also approved of and supported in the other House by Lord Clarendon, who at the time held the office of Foreign Secretary. It would have passed the House of Lords but for the lateness of the period of the Session at which it was introduced. Again, in 1858, the Bill was re-introduced and passed without opposition in that House, and received the approbation of the then Ministers of the Crown, though subjected to some slight criticism of the Attorney General. It was sent to the other House, but fell a victim to the rule of not receiving a Bill, except of great urgency, at a late period of the Session. The Bill which his hon. and learned Friend now called upon him to withdraw, having been introduced into the House of Lords by the high authority of Lord Kingsdown, was referred to a Select Committee of that House, and underwent a most searching examination. It was unanimously adopted by that Select Committee, and passed the House of Lords with the entire approbation of the Ministers of the Crown in the Upper House. He would attempt to explain in a few words the grievances which arose from the existing state of the law. Some thirty years ago a decision was pronounced by the Court of Delegates, happily no longer existing, which, upon the faith of an old maxim, entirely inapplicable to the circumstances of the present times—mobilia sequuntur personam—determined that the will of a British subject domiciled in a foreign country must be made according to the law of the country of the domicile at the time of testator's death. Thus things stood until the other day, when a British subject made a will in Paris, having an attorney sent from this country for the purpose, and executed it according to the law of England. The case went before the Privy Council, and there the testatrix was held to have died domiciled in Paris, and the will was declared invalid. The effect of that decision was this, that every British subject who made his will, whether in this country or in any other, if it should turn out in the opinion of a jury or of a Court of Probate that that person had acquired a domicile at the time of his death in a foreign country, and that the will was not made according to the form of law prevailing in that country, the will was void. That decision would have a most mischievous effect on many wills made of late years. If a British subject, having made his will in England according to the law of the land of his birth, went abroad, a jury or Court of Probate might hold that he went abroad with the intention of permanently residing there, that he had his domicile abroad, and that, consequently, his will was void. Thus, not only was a person bound to ascertain the law of the country in which he had acquired a domicile, but he was bound to foresee at the time of making his will what would be the country of his domicile at the time of his death. Very great difficulties must arise from this state of things, for scarcely two Judges sitting on the bench were able to agree as to the law of domicile, as it depended not only on what a man might do, or say, or write, but upon his intention, or what was passing in his mind. The Bill of which the Attorney General had moved the second reading made the validity of the will of every British subject to depend upon the question of domicile; because it provided that a convention should be entered into with foreign countries, under which no person was to be held to have acquired a foreign domicile except by a continuous residence of one year before his death; unless he should have made a formal declaration in writing that he desired to transfer his domicile to the country of his residence. He appealed to his hon. and learned Friend himself to say whether there was any question arising in courts of law in this or in any other country that was attended with greater difficulties and perplexities than the law of domicile. The Bill of the late Attorney General (the present Lord Chancellor) proposed to make an amendment of the law in this respect, which at present was fraught with mischief and inconvenience, to depend upon treaties or conventions being entered into with foreign countries, and upon offices being established abroad, at which a person was to state his intention to acquire a domicile. He (Sir FitzRoy Kelly) considered that such a Bill was entirely inadequate to the ends proposed, and that it must necessarily continue for a long period of time, perhaps for ever, all the mischief and inconvenience arising under the present law. But, on the other hand, the object of the Bill introduced into the House of Lords by Lord Kingsdown was simple, plain, and clear. It proposed that no genuine will made by a person who believed he was disposing of his property as he had a right to do according to law, and who made it according to the law of any part of the United Kingdom, or of the country in which it was made, or of the country in which the testator had acquired a domicile, should be rendered ineffective because he might at last die domiciled elsewhere. He heard with some surprise the statement of the Attorney General, that the provisions of the Bill of Lord Kingsdown were at variance with the international law of Europe. He said, without fear of contradiction, that the effect of that Bill would be to make the law of England conformable to the public law of Europe, He also ventured to assert that, according to the public law of Europe, every will was valid which was made according to the law of the country in which it was made. The improvement in the law which the Bill now before the House was intended to effect was made contingent upon treaties which might never be entered into, and which even if effected would leave the law attended with all the evils which were completely remedied by the Bill of Lord Kingsdown. He did not, however, object to going into Committee on the present Bill if it were the wish of the House.

SIR GEORGE BOWYER

rose to move that the House go into Committee on the Bill that day three months. He very much regretted that while taking that course he had not the benefit of having among his auditors the present Lord Chancellor, who was so much in the habit of accusing those who differed from him of ignorance; because if the noble and learned Lord were present he might enlighten the House as to the principle on which his Bill was founded—although he (Sir George Bowyer) defied either the noble and learned Lord or anybody else to prove that it was founded on any principle which could be clearly understood by a legal mind. There was, however, no use in indulging in idle regrets, for the noble and learned Lord had gone beyond recall to enlighten the ignorance which existed in "another place." The House must, therefore, make the best of the Bill in his absence, and he should with the permission of hon. Members draw their attention to its preamble, which referred to the question of the validity of wills made abroad and the disposition of personal property by means of such instruments, according to the law of England, and recited that the same could not be amended effectually without the consent and concurrence of foreign States. That he denied. He maintained that the law of England made effectual provision in the matter, and was fully competent to do so, and that the first and second clauses of the Bill could be carried into effect without a convention, and that, consequently, the preamble was founded upon an allegation entirely groundless in point of law. No convention with a foreign country was required to alter the law as administered in the courts of England. It was said that a convention would be necessary for the purpose of determining the domicile of a foreigner resident in this country. He denied that proposition, because the law of a country was supreme within its own territory, and it was competent for Parliament to determine without a convention under what conditions a foreigner resident here should be admitted by the English law to be domiciled in England. He ventured to say that if the Foreign Secretary were to ask any foreign Government to enter into a convention with us on the matter he would be laughed at. Then there was another absurdity in the Bill. The Bill provided that by a declaration in writing a British subject resident in a foreign country should be able to declare that he was domiciled in that country, and that such declaration should have the effect of proving him so domiciled. No Act of Parliament was requisite for that purpose, because domicile was a question of intention and of fact rather than of law. The law was sufficient as it stood. What the Bill did it did injuriously, because it ex-eluded all proofs except a declaration in writing. He thought that a very mischievous interference with the law of nations, because it provided only one proof of domicile and allowed of no other. Perhaps the Solicitor General would tell him that a convention was necessary in the case of British subjects dying abroad and leaving property in a foreign country. But for that purpose no Act of Parliament was necessary; it could be done by treaty. There was not a case in fact which made such an Act as this necessary. He believed if the Bill passed it would be for the most part a dead letter. It was, moreover, open to the objection that it fixed the errors in the English law at present. He repeated that by the law of nations the domicile of the testator had nothing whatever to do with the question. Vattel, as quoted by Storey, clearly laid down that the forms and solemnities required for the execution of a will were the forms and solemnities required by the law of the place where the will was executed, and not by the law of his domicile. He objected to this Bill because it tended to perpetuate the greatest defect in our law—the doctrine that the validity of a will depended on the law of domicile. The law of domicile ought not to be allowed to defeat the will of a British subject resident abroad, because the validity of a will depended by the law of nations, not on the law of domicile, but on the law of the place where it was executed. If a will were executed according to those forms and solemnities required by the lex loci, it was valid all the world over. Lord Kings-down's Bill was based on the soundest principles of public law and practical utility; but he did not see how it was possible to place this Bill and that of Lord Kingsdown together on the statute book. He moved that this Bill be committed this day three months.

MR. HENNESSY

seconded the Amendment.

Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day three months, resolve itself into the said Committee," instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."

THE SOLICITOR GENERAL

said, that there was nothing in the two Bills in the least inconsistent with each other, and each might be discussed with perfect convenience on its own separate and independent merits. The Bill before the House dealt with the subject from a point of view entirely distinct from that involved in the other Bill. The Bill from the Lords dealt with the question what authentication should be necessary to establish the factum of a will; the Bill before the House dealt, in all the clauses except the last, with the question what authentication should be necessary to establish the factum of domicile with respect to the subject of personal succession. The Bill which was next to be submitted to them applied only to cases in which a man dying abroad had made a will, but did not apply to the important question of succession in cases of intestacy. Therefore, the House might decide on both Bills without any conflict between the two. There would be great advantages in passing this Bill on the supposition that foreign nations would be willing to enter into conventions on this subject with this country. If they would not the Bill would fail: but he could not see why foreign nations should object. He might remind the House that during the present Session it had passed a Bill which provided that, by means of conventions precisely similar, questions of foreign law might be sent to foreign countries, in order that the law of those countries might be stated for the guidance of the courts of this country. He wished the House to see the advantages which would be gained if such conventions were entered into. In the first place, all must have observed what extreme inconvenience would arise from introducing local laws affecting the succession of personal property into particular countries—laws which would not be recognized as to the personal property of the same persons in other countries. Though it might be true that in most countries, as to the authentication of the instrument, the lex loci had been permitted to prevail, yet his hon. and learned Friend (Sir FitzRoy Kelly) could not mean that in the distribution of the estate and the succession to personal estate the law of domicile was not universally regarded. Therefore, it was quite clear that in dealing with the really important question of the distribution of the estate, the succession to property, and not the mere authentication of the instrument, they could not escape the necessity of attending to the law of the domicile. The fixing of the domicile was at present a question of the most extreme difficulty. The whole history of a man's life, from his birth to his death, was constantly the subject of investigation with a view to ascertain it. Lord Kingsdown in the House of Lords referred to the enormous expense incurred in prosecuting those difficult inquiries, and mentioned an instance in the courts of this country in which the costs amounted to £30,000. The object of this Bill was to reach that difficulty. As to the distribution of the estate, whether a man died testate or intestate, the other Bill was silent altogether; but this Bill reached the cases both of testacy and intestacy, and also dealt with the subject of domicile so as to get rid of all the enormous sources of expense which existed in the present state of the law. It was proposed by the mutual consent of this and of foreign countries to require certain necessary evidence of the fact and of the intention—of the fact, a certain length of residence; and of the intention, a declaration made for that purpose. It prescribed a method of proving domicile animo et facto. At present many persons were compelled to die intestate, because neither France nor England would recognize the law of domicile acted upon by the other. This was a serious evil, of extensive operation, and he believed that the Bill of the Government would provide an ample remedy; whereas, if the other Bill only were adopted this evil would be left untouched. Under these circumstances he thought the Bill ought certainly to be allowed to go into Committee.

MR. ROLT

said, he did not think it had been shown that this Bill would accomplish the desired object. It depended on conventions for its success. What probability was there that any conventions would over be made? Foreign countries did not act upon our view of the law of domicile, and, therefore, it was not very likely that they would enter into conventions upon the subject. He admitted that it was necessary to do something, but this Bill would only prevent effectual legislation. There was no difficuty in doing what it proposed to do without conventions. The Solicitor General spoke of reciprocity, but had not pointed out how that was to be obtained. Supposing a convention was made with France, that would not in any way meet the case of a British subject dying in Spain. Therefore it would be necessary to make this measure effectual, that we should have conventions with every other country. He objected to this Bill because some legislation without the necessity of conventions would be easy, while the effect of passing this measure would be to hinder such legislation. He regarded the Bill as useless, uncertain, and ill-drawn, and, therefore, he thought it ought not to be passed.

MR. MALINS

adopted the same view as his hon. and learned Friend; but while he desired that this Bill should not pass, he desired that the other should; though he admitted that there was no necessary antagonism between the two. That there was a necessity for some legislation upon the subject of the law of domicile there could be no doubt, and in proof he might refer to the case of the Southampton Charity, in which £30,000 or £40,000 had been spent in ascertaining the domicile of Mr. Hartley, the testator, at the time of his death. He thought that if a will was drawn in conformity with the law of the country where it was executed it ought to be regarded as a good will. The Bill which had come down from the House of Lords was based upon that principle, and, if passed, could come into immediate operation, while this Bill required conventions to make it operative, He (Mr. Malins) would not oppose the passing of this Bill, if the Government would undertake not to oppose the passing of the Bill which was to follow. In proposing this, himself and his hon. and learned Friend must have credit for disinterestedness, as nothing led to more litigation and expense than questions as to wills. The short Bill sent down from the Upper House swept away a mass of legislation on the subject, and simply stated what the law would be hereafter, at least in reference to personal property. He would be willing to postpone the consideration of the subject till the next Session, if ho could be assured that no cases of difficulty, expense, and hardship would occur in the interval. But there could be no guarantee against the operation of the ordinary law of mortality; and since the Bill of the House of Lords would effect an immediate and useful amendment, and the Bill of the Attorney General did nothing antagonistic to it, he trusted his hon. and learned Friend (Sir George Bowyer) would withdraw his Motion, and allow both Bills to pass as a kind of compromise.

THE ATTORNEY GENERAL

said, that, no doubt, the operation of the Bill was contingent on foreign Governments doing that which the Bill proposed in order to arrive at a settled decision as to what was a legal domicile. As to the reciprocity, what he contended was that in the absence of a convention they would still find variance in the decisions of the Courts of different countries; whereas, if a covention were made, there would be a settled principle as to domicile. The hon. and learned Baronet, the Member for Dundalk, questioned the accuracy of the proposition that by the law of nations, not only the distribution of movables, but the solemnities of the execution of the testament depended upon the law of domicile; that opinion, however, was supported by Lord Wensley-dale and the other law Lords in the case so often referred to; who said that not only the distribution of the movables must be dependent on the law of domicile, but that the will itself must be in the form prescribed by the law of the country in which the will was made.

SIR HUGH CAIRNS

did not know whether the hon. and learned Member for Dundalk (Sir George Bowyer) meant to take the opinion of the House on the subject, nor was it actually of much impor- tance whether he divided or not, for there was no chance of the measure becoming law this year. Still, on such a question they ought to he fully persuaded of the grounds on which they supported or opposed the Bill. He would state as briefly as possible his strong objections to it. First, the Bill assumed that the proper way to regulate the succession of property by will was to alter the law as to the domicile. On the contrary, he thought the proper mode was to bring the law of this country as to wills into agreement with the law of other countries, and to make a testamentary disposition good, provided it was in accordance with the law of the country where it was made, and disregarding the question of domicile altogether. His next objection was that the Bill provided a system that would be utterly ineffectual if no conventions were made, and which, if they were made, would establish a system more complex than anything at present existing. He did not know how many foreign States there might be in Asia, Africa, and North and South America; but in Europe alone some fifteen or twenty conventions would be required with first, second, and third rate Powers. A man would have to travel with a hook like Hertslet's Treaties, in order to know whether he was in a State with which a convention had been made with Great Britain on the subject of wills. But, practically, a man would think nothing about it. Testators, again, would omit to go through the formal process of lodging the declaration with the officer named in the Bill. The Attorney General had spoken of the convenience of defining domicile. He would agree that whoever should produce a correct definition of domicile would be a benefactor of mankind. But the present Bill did not define domicile in any way. It only said that there should be no change of domicile until there had been a residence in another country for one year. There would be no statutable enactment to define domicile, and after a convention had been entered into and the process defined in the Bill had been gone through it would still be necessary to show the animus of the testator by the evidence of letters and conversation, as at present. Suppose, too, some testator died abroad in Spain, leaving personal property in France or America as well as England, the Act would only apply to the countries with which we had conventions. Did the Attorney General suppose that other countries would not adhere to their law on this subject? The measure was, in fact, a complicated piece of machinery. It affirmed an erroneous principle, and he must enter his protest against its further progress.

VISCOUNT PALMERSTON

said, that the hon. and learned Gentleman (Mr. Malins) had suggested that the opposition to this Bill should be withdrawn on condition that the Government should make no objection to the second Bill also passing through Committee. He had no hesitation in accepting that proposal, so far as the present stage was concerned. The House might pass both Bills through Committee to-night, and when they came out of Committee they would he better able to judge of the desirableness of proceeding with the second measure.

SIR FITZROY KELLY

thought that that course would be the most advantageous one to adopt.

SIR GEORGE BOWYER

said, that under those circumstances he would withdraw his Amendment.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill considered in Committee.

House resumed.

Bill reported; as amended, to be considered To-morrow.