§ Order of the Day for the Third Reading read.
§ THE LORD CHANCELLOR (LORD FINLAY)My Lords, I beg to move that this Bill be now read a third time. Your Lordships will recollect that the Bill was postponed from last week in order that the best method of dealing with the difficulty which has arisen, having regard to some views expressed by Mr. Justice Younger in the High Court in a case which came before him, might be considered. Since 1837 the view has been held that a will made by a soldier on active service or by a sailor at sea was good although the testator might be under age; but the point has recently arisen as to whether that view, which has been acted upon since 1837, was correct. I have consulted some of my noble and learned friends, and have placed on the Paper a new clause—the insertion of which I will move after Third Reading—dealing with the point. The new clause runs: "In order to remove doubts as to the construction of the Wills Act, 1837, it is hereby declared and enacted that Section 11 of that Act authorises and always has authorised any soldier being in actual military service, or any mariner or seaman being at sea, to dispose of his personal estate as he might have done before the passing of that Act, although under the age of twenty-one years." I think that will meet the case. It would be very unfortunate if there was any doubt on the matter, as so many wills have been made by soldiers and sailors since the commencement of the war. Without further preface, I move the Third Reading of the Bill which is now before your Lordships House.
§ Moved, That the Bill be read 3a.—(The Lord Chancellor.)
§ On Question, Bill read 3a.
§ THE LORD CHANCELLOR moved the insertion before Clause 1 of a new clause. The noble and learned Lord said: The object of this now clause is, as I have explained, to remove doubts as to the construction of the Wills Act, 1837.
§ Amendment moved—
§ Insert the following new clause:
§ "Explanation of s. 11 of 7 Will. 4, & 1 Vict. c. 26.
§ ".In order to remove doubts as to the construction of the Wills Act, 1837, it is hereby declared and enacted that section eleven of that Act authorises and always has authorised any soldier being in actual military service, or any mariner or seaman being at sea, to dispose of his personal estate as he might have done before the passing of that Act, though under the age of twenty-one years."—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 2:
§ Validity of testamentary dispositions of real property made by soldiers and sailors.
§ 2.—(1) A testamentary disposition of any rea estate in England or Ireland made by a person to whom section eleven of the Wills Act, 1837, applies, and who dies after the passing of this Act, shall, notwithstanding that the person making the disposition was at the time of making it under twenty-one years of age or that the disposition has not been made in such manner or form as was at the passing of this Act required by law, be valid in any case where the person making the disposition was of such age and the disposition has been made in such manner and form that if the disposition had been a disposition of personal estate made by such a soldier, mariner, or seaman domiciled in England or Ireland it would have been valid.
§ (2) A testamentary disposition of any heritable property in Scotland made after the passing of this Act by a person to whom section eleven of the Wills Act, 1837, applies or to whom it would apply if he were domiciled in England, shall not be invalid by reason only of the fact that such person is under twenty-one years of age, provided always that he is of such age that he could, if domiciled in Scotland, have made a valid testamentary disposition of moveable property.
§ LORD MUIR MACKENZIE moved to omit from subsection (1) the words "soldier, mariner, or seaman," and to insert "person." The noble Lord said: This Amendment is not much more than a drafting Amendment, and I believe that the noble and learned Lord thinks it would be right to put it in.
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§
Amendment moved—
Page 1, line 20, leave out ("soldier, mariner, or seaman") and insert ("person").—(Lord Muir Mackenzie.)
§ THE LORD CHANCELLORI think this is an improvement in regard to drafting, and it does not alter the meaning. I accept the Amendment.
§ On Question, Amendment agreed to.
§ Clause 3:
§ Power to grant probate to universal legatees.
§ 3. Where by a will which is rendered valid by section eleven of the Wills Act, 1837, or by this Act all the property of the deceased is bequeathed or devised to one person or to two or more persons jointly, or in common, but no executor is appointed by the will, probate of the will may be granted to that person or those persons as if he or they had been appointed to be executor or executors by the will.
§ THE LORD CHANCELLOR moved to omit Clause 3. The noble and learned Lord said: This clause was introduced for the purpose of avoiding the expense of administration. I find on inquiry, however, that the expense of administration is very slight in the case of small property, and that there might be some inconvenience caused by removing the security which is afforded to creditors. In these circumstances, and having regard to some possible questions that may arise upon the construction of the clause, I think that it would be better if it were removed altogether.
§ Amendment moved—
§ Leave out Clause 3.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ LORD MUIR MACKENZIEThe next clause after Clause 3 which stands in my name is already covered by the Amendment passed upon the initiative of the Lord Chancellor, and therefore I do not move it.
§ Clause 4:
§ Power to appoint testamentary guardians.
§ 4. Where any person dies after the passing of this Act having made a will which is rendered valid by section eleven of the Wills Act, 1837, any appointment contained in that will of any person as guardian of the infant children of the testator shall be of full force and effect.
§ THE LORD CHANCELLORClause 4 is for the purpose of dealing with the case of wills appointing a testamentary guardian for children. The Amendment that I pro- 1152 pose is this. The clause runs: "Where any person dies after the passing of this Act having made a will which is rendered valid by section 11 of the Wills Act, 1837, any appointment contained in that will of any person as guardian of the infant children of the testator shall be of full force and effect." I propose to insert, after the word "is" the words "or which, if it had been a disposition of property would have been" rendered valid by section 11 of the Wills Act.
§
Amendment moved—
Page 2, line 11, after ("is") insert ("or which, if it had been a disposition of property would have been").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 5:
§ Short title and interpretation.
§ 5.—(1) This Act may be cited as the Wills (Soldiers and Sailors) Act, 1918.
§ (2) For the purposes of section eleven of he Wills Act, 1837, and this Act the expression "soldier" includes a member of the Air Force, and references in this Act to the said section eleven include a reference to that section as extended by this Act.
§ THE LORD CHANCELLOR moved, after "as" ["reference to that section as"] to insert "explained and." The noble and learned Lord said: This small Amendment provides that the reference of this Act shall include the reference to that section as it is intended by this Act. It is desirable to insert these words so that the clause will read "as explained and extended by this Act."
§
Amendment moved—
Page 2, line 20, after ("as") insert ("explained and").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORI beg to move that the Bill do pass.
§ Moved accordingly, and, on Question, Bill passed and sent to the Commons.