HL Deb 17 January 1918 vol 27 cc737-9

Order of the Day for the Third Reading read.


I am going to ask your Lordships to postpone this Bill until Thursday of next week, and as the occasion for the postponement is of some importance I propose to say a few words in explanation. The Bill before you is based on the view that, in the case of a will of personal property made by a soldier on active service or by a sailor at sea, the will is good although the testator is under age; is under twenty-one. That view has prevailed ever since the Act of 1837 was passed, and certainly at least since the year 1846, when the matter came before Sir H. Jenner Fust, a very well-known Judge. It was the case of the will of a minor who was killed in India at the battle of Aliwal in 1846. Application was made for probate of his will to Sir H. Jenner Fust, sitting in the Prerogative Court.

The circumstances were that the deceased, a cornet in the eleventh regiment of Bengal Light Cavalry, died a bachelor and a minor on January 28, 1846, being mortally wounded at the battle of Aliwal in the East Indies. He wrote a will in pencil (which the surgeon alone attested) on the field of battle. Sir H. Jenner Fust said— This is the first case of the will of a minor dying on the field of battle. The question is whether it is a good and valid will. Under the general provisions of the Act it is not; but under the eleventh clause it would be valid whether the deceased were major or not—'any soldier, being in actual military service, may dispose of his personal estate as he might have done before the making of this Act.' Then, as he might make such a will according to the Statute of Frauds, and even a nuncupative will, and whether major or minor, according to this clause, this is a good and valid will. And that administration was given.

This view was expressed in 1846, and has been constantly acted upon ever since in dealing with these military wills. Since this Bill was before your Lordships, earlier in this very week, a decision has been given by Mr. Justice Younger, in a case in which, although the point did not arise for decision because the learned Judge said probate had been granted and he was bound by the probate, he expressed the opinion that the point whether the view of the law taken by Sir H. Jenner Fust was correct might require further consideration. As this Bill is drawn on the assumption that Sir H. Jenner Fust's view of the practice pursued since was correct, it is desirable that it should be considered whether the point should not be cleared up. Mr. Justice Younger has been good enough to communicate with me, both in writing and by interview, and he thinks the point should be cleared up. A great many wills have-been made by minors relying on the universal understanding that the law was as Sir H. Jenner Fust pronounced it in 1846, and it would be extremely unfortunate if it turned out that every one had been wrong on this assumption. Accordingly I think it is right that we should consider whether the present opportunity should be taken for dealing, in some form, with the point as to whether the question cannot be effectively cleared up. It would be unfortunate if there were any doubt upon it, and I therefore ask your Lordships to adjourn the Bill for further consideration until this day week.


My Lords, I was so horrified and astonished when I read the decision that appeared in the newspapers yesterday morning that I instantly rushed into print, and I trust the Lord Chancellor did not think I was disrespectful towards him in doing so. The Bill was down for Third Reading to-day, and there was too great a pressure of business last night for me to speak to him on the subject, but I thought he would not consider it discourteous of me to put down an Amendment to the Bill dealing with this point. Nothing could be more astonishing than that the decision which has been acted upon for seventy years should now be in doubt, and I do not think myself there is very much difficulty in declaring the law. I ventured to put down words which seem to me to do it quite simply and plainly, but, undoubtedly, they require careful consideration. I am very glad to hear that the Lord Chancellor is postponing the consideration of the Bill, because it means that this will be done in the most complete and careful way, and I believe the delay will have the effect of expediting the Bill, because when it goes to the House of Commons there will be the same feeling there that this is a point which ought to be dealt with at once.


My Lords, I have made an examination of some of the Statutes on which the judgment of Mr. Justice Younger was based, and, without saying more on the subject, I can assure your Lordships that very great weight must be attached to his interpretation. I should like cordially to support the postponement of the Bill, on the ground that it will give an opportunity to make quite clear what would otherwise be only a cause of lengthy and costly litigation.

Third Heading postponed until Thursday next.