HL Deb 25 March 1852 vol 120 cc59-64

, in moving that the House go into Committee on this Bill, said that the first clause in it was the great object which he wished to carry at present. He should move in Committee that the second and third clauses should be struck out of the Bill; but he should afterwards introduce them in a separate Bill, upon which he should take the sense of their Lordships.

House in Committee.

Clause 1 read; Clauses 2 and 3 struck out.


said, he thought this clause, as now worded, would create as many evils as it was intended to correct—evils which he considered arose, not from the Wills Act (1 Vict. c. 26) itself, but from the construction put upon that Act by the Judges. The language of the Wills Act, as it appeared to him, was as clear and as capable of being understood by those who were not lawyers as any language which could be suggested. The object was to make it incumbent upon testators to sign their wills, which meant, to the ordinary understanding of mankind, to put their name at the bottom; and further, to put an end to this anomalous state of the law, that a will disposing of an acre of land must be attested by three witnesses, while the disposal of 100,000l. of money might be collected from scraps of letters and papers, He well remembered Dr. Lushington saying that an endless number of disputes had come before him as counsel and Judge, in which wills were established, and where it was at least doubtful whether the Court was not making a will for a person instead of taking his own. By the Wills Act, the testator was required to sign his will in the presence of witnesses, to secure him from having a spurious instrument passed off as his will after his decease. The object was most legitimate; and here he would remark that he never could concede the principle alluded to on a former day by his noble and learned Friend (the Lord Chancellor), as to the necessity of providing for the wills of persons made in extremis, when certainly the body, and probably the mind, was not in a fit state to give attention to the subject. He did not say that a man in extremis should be prevented making a will; but wills so made should be the exception, and not the rule. They ought to adapt their legislation to those persons who sat down in health and strength to make their wills, with no forms which were unnecessary, but only such as were calculated to secure their object. Nothing could be more clear than the language of the present Act. It declared— That no will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. If they had endeavoured to get language more plain or intelligible to non-professional persons, they could not succeed. However, unfortunately, the Judges of the Ecclesiastical Courts had raised many questions, and placed many difficulties, in the construction of the Act. He did not believe the same thing could be justly affirmed of the Chancery or Common Law Judges. The Ecclesiastical Judges held, the clause required that the signature should be at the foot or end of the will; and they declared that where a blank was left, so that matter could be interpolated between the signature and the will, the instrument was invalid. Perhaps they might be justified in such a decision; for unless some such rule was adopted, a door would be opened for great fraud. However, the Ecclesiastical Judges had gone to much greater lengths, and it was high time for the Legislature to intervene, for much injustice and suffering had been occasioned by the doubt and uncertainty which now prevailed. By his noble and learned Friend (the Lord Chancellor's) Bill, every will would be deemed valid if the signature was so placed either after, or following, or under, or beside, or opposite to the end of the will, provided that it were apparent that the testator intended to give effect to the writing, as his will by such signature. The wording of the clause was most important, and he would therefore call their Lordships' special attention to it. (The Noble Lord then read the clause as above.) The object which his noble and learned Friend had, was to include all the cases which had come before the Courts for judgment; he had carefully gone through all the decisions which had been made, and he says in this clause that the will shall be valid notwithstanding all those cases in which the Courts have held them not to be so. He (Lord Cranworth) ventured to submit that this would have the effect of raising new future difficulties, supposing cases would arise not provided for specially, as those recited in the Bill. He would therefore suggest to the noble and learned Lord, whose great and preeminent ability he fully recognised, whether it would not he better to shape the clause in more general terms, so that a will should be declared valid if the signature should, without any fraudulent intention, be so placed as to make it apparent on the face of the document that the testator intended to give effect to the writing as his will?


said, that as he had agreed to strike out the second and third clauses, the debate upon the principle involved in the measure came upon him by surprise. The noble and learned Lord was of opinion that the words of the clause whereby it was declared when a signature to a will should be deemed valid, would increase a hundredfold the difficulties which already existed, although it had been intended to remove them. All he could say was, if that were the case, he was a very bad draftsman indeed, and he would he glad if the noble and learned Lord would take the Bill into his own hands, and mould it into a better shape. But their Lordships might depend upon it that the language of the clause was perfectly correct as it stood. It declared that a will should be valid although the signature shall be upon a side, or page, or other portion of the paper or papers containing the will, and although there should appear to be sufficient space on or at the bottom of the preceding side or page upon which the will was written. The Bill declared wills valid notwithstanding the decisions of several of the Courts which had decided against their validity upon mere formal objections. Under this clause, therefore, that sort of objection would no longer prevail. His whole object had been to render wills, no matter how signed, valid against all technical objections—to render them indefeasible, provided it was apparent what had been the intention of the testator. If he were to adopt the suggestion of the noble and learned Lord, every objection which had already arisen would still have weight and existence. The general enactment in his clause had the effect attributed to it by his noble and learned Friend; but if he were to adopt the Amendment proposed, and strike out what follows, he would leave the law exposed to the like construction as had been adopted under the existing Act. The few lines which were objected to did not restrict the operation of the general enactment, but precluded the Courts from acting upon the rules which they had applied to the existing Act. The clause had not been adopted hastily, nor until he had been perfect master of all the cases which had been subject of judicial decision.


was understood to approve of the phraseology of the Bill as it stood.


said, that his object in wishing to make the language of the Bill more general was, to meet the well-known axiom at law—Expressio unius exclusio est alterius. He felt that if certain cases were provided for, all those which were not would still be subject to the old interpretation of the Courts, and thus future difficulties might occur. If the language were more general, and special reference to exceptions were avoided, such instances could not be anticipated. He had merely thrown out the suggestion; it would be for the noble and learned Lord to consider it. He saw very well why the clause had been framed thus specially. The acute mind of the noble and learned Lord wished to deal with all the decisions of the Courts, and to guard against their repetition.


said, that it was extremely important that they should adopt a uniformity of language in the wording of this Bill, rendering it thus intelligible to all capacities. Now, he did not think that this uniformity of language was preserved. The Bill recited that a will should be valid although the signature should be placed among the words of the testimonium clause, or the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or should follow and be after or under or beside the names or one of the names of the subscribing witnesses. Now, to be beside or opposite meant two very different things. Noble Lords knew quite well that to sit beside or opposite each other meant widely opposite things. As this question had been raised, he would suggest that the best thing that could be done was, for the law Lords to meet in Committee, and settle the point among them, and whether the omission of any of those words would not tend to a uniformity as well as an intelligibility of expression.


said, that the words "opposite" and "beside" meant to include cases which had come under judicial consideration. The word "beside" provided for the signature being in the margin, close to the body of the will; the word "opposite" provided for a signature, for example, on the third page of a sheet of letter paper, where the will ends on the second page. The Bill had not been got up in a hurry, although for the public interest it was desirable that it should receive a speedy assent from the Legislature. It so happened that he had published a work upon wills, and he had given the question great attention, and had gone through all the cases with great care. With that amount of knowledge he came prepared to remedy a great evil, and he did not, therefore, expect the opposition which the Bill had encountered. It was his deliberate opinion that the phraseology as it stood was necessary to attain the objects which everybody admitted were most desirable.


declared himself in favour of the clause as it then stood. His noble and learned Friend felt indebted for the suggestions made, and would no doubt give them his consideration before the Bill came again under discussion. The words "opposite" and "beside," in his mind, were quite necessary to meet some cases which had been already decided. He deprecated earnestly any reference to a Select Committee, because the result of that would be great delay, and he did not think the slightest good would result from a reference to the Committee which had been proposed. He also deprecated delay as occasioning much and grievous injury to the large class of persons interested by the Bill.

Amendments made.

Clauses 2 and 3, as to acknowledgment and signature of will by the testator and attestation of the witnesses, struck out.

Bill to be reported To-morrow.