HL Deb 23 March 1852 vol 120 cc1-9

ORDER of the Day for Second Reading, read.


My Lords, I rise to move the Second Reading of a Bill for the Amendment of the Law with respect to Wills. When I introduced this Bill the other night, I stated to your Lordships the difficulties which it was intended to guard against. By a statute passed in the reign of Charles II., all devises in writing were to be attested and subscribed by three or four witnesses, in the presence of the testator; and it was said that a will was good if the name of the testator was found at the head of the will; and therefore, if a man, for example, began in these terms—"I, John Styles, do make this my will," that was held to be a sufficient signature. Now, my Lords, this was thought to be an abuse; and, in order to guard against such an abuse, a new Act of Parliament was passed in the first year of Her present Majesty, for the amendment of the law of wills, which provided that every will should be signed at the foot or end thereof by the testator, in the presence of certain witnesses. I have stated to your Lordships that the effect of that enactment was (and I dare say it was a surprise upon those who framed the Act) that; unless the name of the testator followed immediately after the disposition of the will (if there was, for example, a little more than an inch of space left, on which the name might have been introduced), if the name was placed a little lower, the case was tried, not by the rule of law, but rather by the rule of space, and the will was held to be void; and, upon that construction, my Lords, hundreds of wills have been held to be invalid, and misery and wretchedness have found their way to hearths where wealth, peace, and comfort ought to have found their habitation. My Lords, the proposition is to amend the present law, by providing, that, where the name of the testator is found after the will, so as to give, by its place and situation, a sanction to the will itself—so as to show that it was intended to sanction the will by the signature after the will—that shall be held to be valid. Now, my Lords, no question ever arose in the vast number of wills which were made after the Statute of Frauds in the reign of Charles II., which I have mentioned—no question, I say, ever arose as to whether the name of the testator being after the will was in its proper place or not, and therefore the removal of the obstacle which has been occasioned by the decisions will remove all the difficulties, and no question hereafter can arise, as it appears to me, my Lords, with regard to the execution of such a will. My Lords, I believe there will be a general concurrence in this measure, and I believe that nothing can be more desirable, as people die daily, and as men must make their wills, and as a great majority of wills would be held to be valid but for the rule of law I have referred to; and, indeed, I know that many of your Lordships, in consequence of what you have heard, have done exactly what I have done myself—namely, I have looked at my own will to see whether it was executed so as to carry my own intentions into effect, having a very great doubt in my mind whether the appearance of the thing upon paper might not invalidate it, for I might have put my name a little lower than the rule of law required. And I think, my Lords, that it is of the utmost importance that a man's will should be considered valid and sacred where the mere form only is in question, and the substance is not in dispute. Therefore I propose, with your Lordships' permission, to carry the Bill through all its stages now, so that your Lordships may be enabled to pass the measure before Easter, and send it down to the other House immediately. My Lords, there are other points which I have endeavoured to cope with, and which may be open to more observation, and which may draw from some of my noble and learned Friends objections to its passing without more mature consideration; and, my Lords, if that should be so, I can only say that I should at once feel myself bound to withdraw those clauses, because I mean to put forward nothing that, in my opinion, will endanger the principal measure, which is one which I think so exceedingly important. My Lords, the two clauses to which I refer, will, I think, remedy a very great abuse. The Act of Parliament of Her present Majesty, as I have told your Lordships, requires a will to be signed at the foot or end thereof, in the presence of two witnesses. That, my Lords, I have disposed of. It then goes on to require that the signature of the testator shall be made or acknowledged in the presence of the witnesses. Now, my Lords, this difficulty has arisen upon that—it was not required by the Statute of Frauds—but this difficulty has now arisen. Your Lordships will bear in mind that what the Act requires is, that the signature of the testator shall be made or acknowledged in the presence of the witnesses. Now, my Lords, it often happens that when a man has made his will and called in the witnesses to attest it, he is anxious that they should not see any part of the provisions of that will: suppose, for example, that it is written on a sheet of letter paper—you have it before you, and two servants, perhaps, come into the room to witness the will, and the testator desires that they should not read any portion of the will by glancing over that part which is above the signature, and that has induced a man frequently to fold down the will so as to hide from the witnesses the portion above the signature, and in doing so he has folded down the signature itself. And, my Lords, it has been held that as the statute requires that the signature, not the will, should be made and acknowledged in the presence of the witnesses, unless they have seen the signature, the will is void. Now, my Lords, that was never the intention; and with your Lordships' permission, I propose to amend that state of the law in this manner, by enacting that if the signature of the testator be in its proper place, and it is not proved to have been placed there after the witnesses affixed their signatures, and if the testator at the time acknowledged the instrument to be his will, that that shall be sufficient. Now, my Lords, I entertained a hope—which hope I have rather abandoned within the last quarter of an hour—but I had hoped that this proposition was free from objection, and would meet with none from any of my noble and learned Friends, because, if a testator acknowledges an instrument to be his will, and if the will come to be examined, and the name of the testator is found to be in its proper place at the end of the will, where is the danger? What is it, my Lords, that you have to guard against? There is the signature—the testator has signed it, and, properly speaking, it is not his will unless he has signed it. If, there-fore, be did that which was requisite at the end of it, which is necessary to give effectual operation to it, I ask your Lordships whether it is reasonable to allow men's wills to be set aside upon a distinction of that sort? I should promise your Lordships that if any obstacle be opposed by any of my noble and learned Friends to this provision being carried now—a provision which I should think it not proper to attempt to force upon your Lordships—if any of my noble and learned Friends should have any objection to offer, I shall think it highly improper to attempt to ask your Lordships to pass this provision without full consideration being given to it; and, therefore, I shall withdraw it, so as not to endanger the ultimate success of the whole measure, though undoubtedly I shall introduce it for further and more mature consideration upon another occasion. My Lords, there is another improvement, if your Lordships should think proper to concur in it, that I propose to introduce. The statute requires that the witnesses should sign in the presence of the testator. And, my Lords, it has very often happened, that when a man is making his will in extremis—when he is lying in bed, and is incapable of being moved, but in a state of perfect capacity of mind—it has frequently happened that witnesses who have come round the bedside, and witnessed the execution of the will, and seen it signed by the testator, all due solemnities being observed, in order not to disturb him, have retired to the adjoining room, and there attested the will; and then the question has arisen—Is that, or not, a compliance with the statute, which requires that a will shall be signed by the witnesses in the presence of the testator? Now, my Lords, in order to meet the difficulties of the case—with a natural desire to give effect to men's wills, where there is no fraud, and where the statute has been substantially complied with—the Courts have made this distinction, that if the witnesses sign in such a position in an adjoining room that they are within the line of sight, so that the testator, if he liked, might see them (although nobody pretends that he did see them), the will is good; but if they happen to retire a little beyond the line of sight, the table, for example, being out of view, and they all sign the will, the will is void. Now, my Lords, what has been the consequence? Why, my Lords, this—that juries have not been found who would, though upon their oaths, find a will so signed to be void. They would not find a will to be void, though it was clear that the testator was not in a position in which he could have seen the witnesses sign. And, my Lords, we have had several instances of this sort. Several trials have been sent down to juries once, twice, and thrice, to decide that question upon a will, in cases in which there was no doubt about the fact that the witnesses were not within the line of sight, and the juries have, upon every occasion, returned a verdict in favour of the will, refusing obedience to the law, because they thought that a verdict according to the rule of law would be stripping the rightful owners of their just possessions. Now this is an invitation which should not be held out to juries to compel them to come to a verdict at variance with their own conscience. My Lords, there is undoubtedly a difficulty, and I will state to your Lordships what one of the results of this state of things is, and which is really almost absurd and almost ludicrous. The statute applies to a blind man's will as well as to the will of a man who is possessed of his eyesight; and it has been held, therefore, that under the statute, although the witnesses are to sign in the presence of the testator, yet if they sign in the presence of a blind man that it is a good signature. But your Lordships will be astonished when I tell you that the Courts have made this rule, namely, that the same rule—that which I have spoken of to your Lordships as to the line of sight—applies as well to a blind man as to a man that can see; and the Courts have decided that if a blind man is not in a position in which, if he was blessed with sight, he could see, his will is void. And so, in the ease of a man being wholly incapable of seeing, if the witnesses are there, his will is good if they happen to sign within the line of sight. Now, my Lords, surely these are anomalies in the law of England which ought not to be allowed to prevail; and I must say that the first case that I put to your Lordships, in which men wills have been held to be void because the signature was not in the proper place, is a case which in its operation is a disgrace to the country. My Lords, it is very easy to point out what I have been stating to your Lordships upon the last head. It will not be, perhaps, so easy to persuade some of my noble and learned Friends that I have provided a satisfactory remedy, although I have often and anxiously taken the subject into consideration. But, my Lords, this no hasty conclusion of mine. I have no doubt some of my noble and learned Friends will think that I have not provided in the most satisfactory manner for the solution of this question; but what I propose to provide for is this, that where witnesses, without fraud, and as part of the same transaction, without quitting the house or place where the will is signed, do sign a will after seeing the testator sign it, all due solemnities being observed, that shall be held to be a valid will. Now, my Lords, no doubt it may be said that this would open a door to some fraud or some substitution of one will for another. My Lords, these are not the dangers, after all, which we have to avoid. It may be said, that because the dangers have not occurred, the law has prevented them. But the law has not struck at fraud; the law has destroyed a man's will which was open to no substantial objection: but the law has not prevented the frauds which, whenever the parties had been determined to carry them into execution, they have been able to do in spite of the law. I do not say that they have all been successful—they have attempted it skilfully, and it may be successfully in some cases, and they have taken care to adhere to all those rules which would destroy men's wills, in attempting to impose the solemnities required. Now, my Lords, I must state in conclusion that if any of my noble and learned Friends object to either of these two clauses, I will not retain them. But if I should have the concurrence of my noble and learned Friends to the first clause, which I expect, I shall be very well content. If not, I shall listen with respectful attention to what they have to suggest. But, my Lords, I cannot promise that I shall not, upon a future occasion, bring into your Lordships' House a measure founded upon these propositions, which may be then more fully considered. And, as I am addressing your Lordships upon the subject, and speaking of future measures, I would draw your Lordships' attention to a measure as to wills which may require the attention of this and the other House of Parliament. The statute of the first of Queen Victoria for the first time imposed the same solemnities upon the disposition of personal estate as in the time of Charles II., with variations, were imposed upon the disposition of real estate; and it was said, how absurd is it that you cannot dispose of half an acre of land without three witnesses, and yet you may dispose of 100,000l. of personal estate without any witnesses. Yet people do not desire every day to alter the testamentary disposition of their real estate, but they make variations in the disposition of their personal estate by codicil and by legacy to be payable out of their personal estate, however large it may be; but no man can make the slightest alteration in his will: he cannot give 5l., nor alter a legacy, without calling in two witnesses. It was said of no ordinary man that he had ten thousand freaks which; died in thinking. I might say with equal truth that owing to the difficulties which the law throws around them, many ten thousand legacies have died in thinking. These are points, however, which we must consider hereafter. The noble and leaned Lord then moved that the Bill be now read 2a.


had no objection to give the Bill a second reading. He entirely approved of the course suggested by the noble Lord on the woolsack, of striking out, for the present at least, all but the first clause, and agreed with him that at all events that clause should be passed. If there were any difficulty, it was not so much with the second as with the third clause; but with reference to those two propositions, he desired further discussion. As to the ease about which there were two or three trials, he supposed the noble Lord meant that of the late Duke of Roxburgh's will. He (Lord Brougham) was counsel at the trials, and the question was, whether the signatures of the witnesses were affixed within the line of sight. His Grace died in the house in St. James's Square; before his death he lay in a room next the drawing-room; the will was signed by him and then taken into the drawing-room to be attested. The whole matter turned open whether the witnesses signed upon a table between two windows, or upon a table in the centre of the room. If it had been signed upon the table between the two windows, it would have been, by the rule of law, in the presence of the testator; but if upon the centre table, it would not have been, by the same rule, in the presence of the testator, the wall intervening. Of course great consequences followed the distinction made by the rule; but serious consequences were apt to follow almost all rules laid down. The business of the lawgiver was not to avoid laying down rules, but was so to frame the rules that the minimum of contradiction and anomaly should be involved.


expressed himself in favour of the principle of the Bill, but thought that some of the evils of which his noble Friend on the woolsack had complained, arose rather from wrong decisions of the Judges, than from the imperfections of the law. These evils, however, required remedy, whatever might be their cause; and he should therefore not oppose the second reading of the Bill.


thought that his noble and learned Friend on the woolsack was perfectly justified in introducing this Bill; but should have been better satisfied had he consolidated all the statutory provisions relating to wills into one general measure,

BUI read 2a.

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