Lords Sitting of 7 May 1861

WILLS OF PERSONALTY BY BRITISH SUBJECTS BILL.
  ORDER FOE COMMITMENT DISCHARGED.

    BILL REFERRED TO A SELECT COMMITTEE.
    Order of the Day for the House to be put into Committee on the said Bill read.
    LORD LYNDHURST: My Lords, I very much regret that I was prevented by accidental indisposition from being present at the second reading of this Bill. I am told that the Motion for the Committee was postponed in consequence of my absence, and I feel, therefore, that I am called upon to state my views with respect to the question which it involves—a question of very considerable importance, and one in which I confess I take a deep interest. In dealing with the subject, however, not much can be required of me after the very able statement of my noble and learned Friend by whom this measure was introduced (Lord Kingsdown). Some recent decisions have led to great confusion with reference to the form in which testamentary instruments ought to be executed by British subjects residing in foreign countries, and great anxiety has in consequence prevailed. There is hardly a professional person to whom application has not some time or another been made in such matters; and, speaking for myself, I must say I always found it much easier to put a question in these instances than to give a satisfactory solution of the point at issue. A very important decision was, in discussing this subject, referred to by my noble and learned Friend on a former night—I allude to the case of Bremer v. Freeman. For the learning of the Judges by whom that case was tried I entertain the utmost respect. It was determined by the Judicial Committee of the Privy Council; but I must say that, however great the respect I may have for the persons of whom that tribunal was composed—and I can unfeignedly say that I do respect them highly—their decision in this instance has tended very considerably—at least so far as residents in France are concerned—to increase the doubt and difficulty in which this subject is involved. The main question that was raised before them was one of French law to be decided by an English tribunal. It was a question of the most simple kind in point of form—namely,

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    whether a domicile in France would be sufficient to convey testamentary power unless it had the authorization of the French Government. Several witnesses were examined in the case, among them eight or ten advocates from Paris, whose evidence was of a very conflicting character. The authorities which were appealed to were also found to be conflicting. My noble and learned Friend who sits on the bench opposite (Lord Wensleydale) delivered the judgment of the Court, and in doing so stated that the evidence was confused and unsatisfactory, and that it was extremely difficult for him or for the Court to decide as to the comparative weight of testimony of the different witnesses. The decision pronounced, however, was that a domicile de facto, without the authorization of the French Government, was sufficient to confer testamentary authority in France. Now, I very much regret the absence of a noble and learned Friend of mine in the south of France, because if he were here he could corroborate that which I am about to state—namely, that this decision created an extraordinary impression on the other side of the Channel. My hon. and learned Friend, Sir FitzRoy Kelly, in consequence, conceived he was bound to make application to one of the tribunals in France to investigate the question. It was proposed that ten of the most eminent advocates of Paris should be assembled for the purpose; and when I mention that among them were M. Berryer, M. Dupin, M. Odillon Barrot, I think it will be admitted that a tribunal better qualified to decide a question of French law could not well be found. Well, they came unanimously to the opinion that the judgment of our Courts and of the Judicial Committee of the Privy Council was wrong, and that domicile, unless authorized by their Government, was not sufficient to confer testamentary power. The principle of that opinion is, I may add, strictly in conformity with the written views of one of the most eminent of French lawyers. It must not, however, be supposed that in making these observations I am finding fault with the decision at which the Privy Council arrived. I mention these facts simply to show the position in which this question now stands, and the great doubt and difficulty which exist with respect to the form in which wills made by British subjects in France should be drawn up. A noble and learned Friend of mine, who sits opposite (Lord Wensleydale),
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    suggested a mode in which that difficulty might be obviated, which I think somewhat curious. He said a will might be framed in duplicate—one being executed according to the law of England, and the other in accordance with the law of France. But, with all deference to my noble and learned Friend, this process would not obviate the difficulty which he sought to remove, inasmuch as when either one will or the other came to be proved the question of domicile would still arise, and the original difficulty would still have to be encountered. The will of a British subject as to personalty must by the law of England be framed in accordance with the law of the country in which he is domiciled at the time of his death. Such is the law of this country; and everybody connected with courts of justice knows the extreme inconveniences of that law. You must, in order to ascertain the domicile of a testator, ransack, as it were, the whole of his life. You have to read his letters and learn his declarations; so that the inquiry becomes almost interminable, and the expense, as a consequence, is generally enormous. My noble and learned Friend who sits near me (Lord Kings-down), for instance, stated, I understand, in reference to the case of Bremer v. Freeman, that the costs amounted to £5,000—the sum involved having been but £10,000; so that nearly the whole of the estate was, eaten up by the expenses attendant on the inquiry. There was a case decided in this House some weeks ago—" Acton v. Acton" I think it was—in which the question arose whether the testator had been domiciled in England or in Scotland? Now, one would think there would be no great difficulty in determining that point; but the evidence, nevertheless, occupied 1,800 closely-printed pages, and the arguments in the courts in Scotland lasted ten days. The case was brought up to the House of Lords on appeal; the arguments were continued for almost an equal number of days here, and the cost of the investigation must, under those circumstances, have been enormous. What they amounted to I cannot exactly say, because, in consequence of the relationship existing between the parties to the suit, an arrangement was entered into between them. Now, this being the state of things, some alteration in the law on this subject is, I contend, absolutely necessary. I think it right, with respect to the framing of a Bill, that we should go beyond the lex

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    domicilii, and even to the extent of the doctrine locus regit actum. That is the object of my hon. and learned Friend's Bill. I have read many of the observations which have been made with respect to the measure, and I gather from them that one of the main charges made against it is that it is at variance with the principles of international law. Now, no charge can, in my opinion, be more unfounded. So far from being inconsistent with international law it reconciles with that law the law of England. Those who say the contrary misapprehend, in my opinion, the object of the Bill. It relates merely to the form of the instrument, and the manner in which it ought to be executed. It has nothing whatever to do with the construction of a will after it has been submitted to probate. And what, let me ask, is the consequence of a mistake in one of these documents in point of form? Why, that the will entirely fails; that the person who made it is declared intestate, and that his intentions are completely defeated. By the law of England as it at present stands, a will must be executed in accordance with the law of the place where the testator happens to be domiciled at the time of its execution and at the time of his death. That is a doctrine peculiar to the law of England among all European countries. I cannot say, however, that its operation is confined to England, inasmuch as this is also the law of the United States of America, who take it from this country. But it is not the general law of Europe—very far from it. By the law of Europe a person is allowed the option of framing his will either according to the lex domicilii, or in accordance with the law of the place where he happens to be at the time of the execution of the instrument. What, I would ask, can be more reasonable or proper? This is the law of Holland, it is the law of Belgium, of Germany, and of Spain. It is so laid down by ail their most eminent jurists. All the authorities are collected in the fourth volume of Burge's Commentaries. It is also the law of France. Any Frenchman residing in a foreign country, and wishing to make his, will, may, by an express article of the French Code, make it according to the law of France, or according to the law of the country where he happens to be at the time. But, more than this, it is the law of Scotland, and a case was decided not many months ago by the Court of Session in which that question came before
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    them. The testamentary papers were made at Sumatra, and according to the law of Sumatra the question was decided in the Scotch Court, and the decision was that the will was perfectly valid in point of form. The whole scope of the judgment is deserving attention. I have it not here, and if I had I would not trouble your Lordships with it in detail; but I may say that the result of it is that, "according to the most eminent jurists "—these are the words of the Judges—" the party making his will has the option either to make it according to the lex domicilii, or according to the law of the place in which the will is made;" and Lord Kinloch, who gave a separate judgment, said that it was too late to agitate the question, for that it had been decided on the best authority that, with respect to wills as well as deeds, locus regit actum. My noble and learned Friend on the Woolsack stated with great correctness that the question, as applicable to the subject, is of recent origin. My noble and learned Friend, who is accustomed sometimes to mix up a little pleasantry with his great wisdom, told your Lordships on a former occasion that he hardly knew where his domicile was, for that it was at one time in Scotland and at another in England, and like that of a great many other persons, it seemed to be uncertain. It may be described as ambulatory. I can easily understand that when my noble and learned Friend, in early life, first crossed the Border, his motto was "Forward, forward, forward!—Vestigia nulla retrorsum!" and had he not been extremely successful, in all probability his domicile would have been in England. But when, during the last autumn, my noble and learned Friend recrossed the Border, full of years, full of wealth, and full of honours, carrying with him that mystical emblem, the Great Seal of England—[The Loan CHANCELLOR: The Great Seal of the United Kingdom.]—which was exhibited much to the admiration of his countrymen; and when he heard those harmonious tones to which he was accustomed in early youth, I can conceive that he might have said—
    "Still do I hope, this length of lahour past,
    Here to return, and die at home at last."
    This doctrine of domicile dated from a very remote time. In olden times, when a man carried with him most of his personal property in the shape of money, clothes, ornaments, arms, &c., "Mobilia sequuntur personam" was the motto, and we know that

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    the most powerful Baron generally possessed moveables of the most scanty description. In his reception-hall the floor was covered with rushes, and there were stools and forms for the guests; and then it might be very well for such a rule to prevail. But is that the case now? A British subject residing in Paris may possess a large amount of leasehold property, and railway, canal, and dock shares, all of which are personal property; but if a man possesses a single acre of freehold property and makes his will, that will is never affected by the domicile. Now, an Englishman, wherever his domicile, still retains his character as a British subject; and why should he not, as far as his personal property is concerned, have any power to dispose of it that may be consistent with the law of this country? It is to this object that the Bill of my noble and learned Friend is directed. My noble and learned Friend (Lord St. Leonards) stated a singular objection, as I understand, to this Bill. I admire my noble and learned Friend's learning, to say nothing whatever of his enlarged and liberal views. He seemed to consider that Englishmen were of a migratory character, and too much given to visit foreign countries, and that there was some covert design in this Bill to enable Englishmen to spend their money abroad and still remain in enjoyment of all the advantages of English law—by which he must have meant the advantages of his own law—for my noble and learned Friend is the author of the Wills Act, the most complicated piece of legal machinery—
    LORD ST. LEONARDSdenied that he was the author of that measure, and said that he had very much objected to many parts of it.
    LORD LYNDHURST: My noble and learned Friend if he was not the author of the Act was certainly the adopter of it, and I heard him, when sitting on the Woolsack, defend the Bill with the most persevering activity and pertinacity. I believe that my noble and learned Friend who introduced the present Bill considers that nothing could be more advantageous than intercourse with foreign nations—that it tends to humanize mankind, to get rid of prejudices, and promote civilization. In this particular he differs from my other noble and learned Friend; and I can assure your Lordships, from the intercourse I have had with my noble and learned Friend, the author of the present measure, that he has
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    no covert design whatever in the introduction of the Bill. He is entirely incapable of such an object, for there is not in this empire a man more single-minded and more straightforward. He saw the great defect in our law, which required a remedy, and he introduced the present Bill to afford that remedy, and I have no doubt that when it comes out of Committee it will accomplish the excellent and laudable purpose for which it is intended.
    LORD ST. LEONARDSsaid, he was very glad to hear his noble and learned Friend again, although he subjected him to an attack that he did not merit. His noble and learned Friend had designated him the father of the Wills Act; but that was an entire mistake, for he had no more to do with it than any stranger out of the House. He never approved of a great deal of it, and particularly not of that part which was now in agitation. The Act required that the testator should sign his name at the end of the will. Thousands of wills were, however, declared void, and thousands of hearths were made unhappy, because by a mere informality more space was left between the will and the signature than was absolutely necessary. In such cases the question was not whether the will was properly executed, but simply whether there was a certain space left which might be measured by a carpenter's rule; and the consequence was that so many wills were pronounced invalid that they were carried away from Doctors' Commons by basketsful at a time. He was shocked at such a state of things, and as soon as he had the honour of a seat in their Lordships' House he applied himself to frame a remedy. He, therefore, brought in a Bill, of which he was prouder than of any act in his life, which had had this effect—that not a single will had since been made void on this point of form. And the Wills Bill which his noble and learned Friend said he had heard him pertinaciously defend on the Woolsack was not the original Wills Bill but his own Bill to amend it. His noble and learned Friend had quite misunderstood him in representing him as opposed to the principle of the present measure. On the contrary, he approved of it, if the question of domicile could be settled satisfactorily. But had a man who resided abroad any particular claim for facilities that were denied to the man who lived at home? The Legislature had the power to get rid of the law of domicile as between England and Scot-

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    land, but it could not do so as regarded foreign countries. The law of domicile was of the law of nations, and unless they could get foreign nations to agree with them they could not change that law, except in regard to such property as was within the jurisdiction of our own Courts. In effect, an English will executed in this country would now pass both English and French property; one by the law of England, and the other by international law. The Bill, however, proposed to change the law of domicile, and to enact that no domicile should affect an English will. But how would such a law operate in France? If they abolished international law in regard to France, that country would be equally entitled to refuse to admit it as regards England. He was not opposed to the principle of the Bill; but he maintained that as it stood it would deprive British subjects of advantages which they now possessed under international law when they made their wills abroad. By the law of France a foreigner legally domiciled there acquired civil rights, and among others the right to make a will according to French law, and he thought it would be a desirable thing if the noble Earl opposite (Earl Granville) would obtain through the noble Lord the Foreign Secretary a Return of the number of persons who during the last ten years had, by the authorization of the Government, acquired a legal domicile in France, or had been naturalized, so that they might form some idea of the extent to which this measure would operate. He saw no reason why the formalities required by law in making a will should be altered in favour of persons making their wills abroad, while they were retained in the case of persons making their wills at home. He hoped that in Committee such changes would be made as would obviate the objections which now applied to the Bill.
    LORD WENSLEYDALEsaid, that his objection to the Bill was that it was an attempt to do that which such legislation could not do—namely, alter the law of nations. The authorities were full of the principle that by the law of nations the domicile of the deceased at the time of the death governs the disposition of his personal property. He believed the proposed alteration to be useless and unnecessary. His noble and learned Friend (Lord Lyndhurst) had ridiculed the idea of duplicate wills as a means of getting over the difficulty which a testator might some-
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    times feel himself placed when he was not certain in which of two countries he was domiciled. He (Lord Wensleydale) did not suggest duplicate wills, but one executed with the formalities required by both countries. For instance, it was perfectly easy to execute a will valid according to the French form by subscribing in the presence of two attesting witnesses, which would make it valid as an English will.
    LORD CHELMSFORDsaid, that as he believed it was agreed that the Bill should be referred to a Select Committee, he would not trouble their Lordships with many observations; but he must say that the arguments of his noble and learned Friend, and especially of Lord St. Leonards, had clearly established the necessity for such a measure as the present. Why was it that the present Bill had been brought forward? It was because the decision of the Judicial Committee of the Privy Council in Bremer v. Freeman had shown that it was indispensable that some alteration of the law should be made. Nothing could be more helpless than the condition of an English testator in a foreign country under the present law. It was said that the English law favoured testamentary dispositions because a testator was assumed to be inops consilii; but surely no person could want counsel more than an English testator in a foreign country, when it was impossible for him to determine whether he had acquired a new domicile or not, or whether a new will had become necessary; for although it was necessary that a new domicile should be acquired animo et facto, the circumstances in each case were so varying and often conflicting that it could hardly be determined when this new domicile had been acquired. The proposition to overcome the difficulty by making two wills did not get rid of the evil. It seemed like an attempt to get rid of a difficulty by multiplying it.
    LORD WENSLEYDALEsaid, he proposed that only one will should be executed.
    LORD CHELMSFORD: But in order to make either will good it would be necessary that the testator should have at his elbow somebody who was well acquainted with those portions of the laws of both countries which were not conflicting, and should be able to blend these together. That certainly seemed an extraordinary way out of the difficulty which existed. After the powerful way in which the question had been opened by his noble and

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    learned Friend (Lord Lyndhurst), whose voice they were all delighted once more to hear, it was unnecessary for him to do more than to press on their Lordships the absolute necessity of this Bill.
    THE LORD CHANCELLORsaid, he rejoiced exceedingly to see his noble and learned Friend (Lord Lyndhurst) in his place, and he was glad that in the discussion they had had the benefit of his experience, talents, and learning. He thought, however, noble Lords had been rather too hard on this Bill, and had treated it rather as if it were already upstairs before a Select Committee. There was certainly one clause as to which no difficulty could exist, nor any question of international law arise—namely, that a will made in Ireland, Scotland, or England, should be good over every part of the United Kingdom. The question was, undoubtedly, surrounded by many difficulties which could be best discussed in a Select Committee, and he trusted that when it had been there considered it would obtain the approval of their Lordships.
    LORD KINGSDOWNsaid, that after the powerful speech of his noble and learned Friend (Lord Lyndhurst), and the great authority which he brought in support of the Bill, it would be unpardonable if he should trespass on their Lordships with more than a few observations. He did not object to refer the Bill to a Select Committee, on the contrary, he meant to propose that course. The objections that had been made to the Bill were founded on a misapprehension of its objects and scope. It had two distinct objects, one of which was not embarrassed by any difficulties arising from questions of international law. It applied only to the difference between the testamentary law of England and Ireland on the one hand, and of Scotland on the other. Its object was as between those countries to get rid of the question of domicile and to provide that, whatever the domicile of the testator might he, that if a Scotchman made his will in England according to the English form, the will should be good; and if an Englishman made his will in Scotland according to the Scotch form, the will should be good. With regard to the other part of the Bill—that which related to wills made in foreign countries—he must express his surprise to hear it stated that he was interfering with the present law of nations. What he desired to make the law of England was already the law of every country
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    in Europe except England. It was impossible that the law upon this subject could be permitted to remain in its present condition as laid down in Bremer v. Freeman. That decision was pronounced in the ultimate Court of Appeal on such matters at the time it was pronounced, and it must remain the law of England until altered by Act of Parliament. According to that decision a man might for testamentary purposes be held by the law of England to be domiciled in France, though by the law of France he was not held to be so domiciled; and he might have lost the power of making a will according to the law of the one country, without having acquired the power of making it according to the laws of the other. He was satisfied, however, that the objections to the Bill could be best discussed in a Select Committee, and he moved, therefore, that the Bill be so referred.
    The Order for Commitment discharged; and Bill referred to a Select Committee.
    The Lords following were named of the Committee:—

    L. Chancellor.

    L. Rossie.

    L. Privy Seal.

    L. Cranworth.

    E. Stanhope.

    L. St. Leonards.

    E. Malmesbury.

    L. Wensleydale.

    E. Ellenborough.

    L. Chelmsford.

    L. Colchester.

    L. Kingsdown.

    L. Lyndhurst.

    House adjourned at Seven o'clock, to Friday next, half-past Ten o'clock.