A CONCISE TREATISE ON WILLS.

CHAPTER I.

BY WHAT LOCAL LAW WILLS ARE REGULATED.

immov

A WILL, so far as it relates to immovable property, must Will of be made in accordance with the formalities required by ables. the law of the land where the immovable property is situated.

holds.

Immovable property for this purpose includes leaseholds; Leasethe validity and construction, therefore, of wills so far as they affect leaseholds in England, must be governed by English law. Freke v. Lord Carbery, 16 Eq. 461; In bonis Gentili, I. R. 9 Eq. 541.

Wills of personalty made in execution of powers are Will under valid, if made in accordance with the instrument creating the power without reference to the domicile of the testator. Tatnall v. Hankey, 2 Moo. P. C. 342; In bonis Alexander, 6 Jur. N. S. 354; 29 L. J. P. 93; 1 Sw. & T. 454, n.; In bonis Hallyburton, 1 P. & D. 90.

A power to appoint personalty by will, given by an instrument executed in England, may be exercised by any valid will, whether executed in accordance with the Wills Act or not. D'Huart v. Harkness, 34 L. J. Ch. 311; 11 Jur. N. S. 633; 34 B. 324.

By 24 & 25 Vict. c. 114, which extends only to testa

B

Wills made out of the kingdom

to be ad

mitted if

made ac

cording to

the law of

the place

where made.

Wills

made in

dom to be

to local

mentary instruments made by persons dying after the 6th August 1861, it is enacted

1. Every will and other testamentary instrument made out of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his or her death) shall, as regards personal estate, be held to be well executed for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be made according to the forms required either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of Her Majesty's dominions where he had his domicile of origin. See In bonis De la Saussage, 3 P. & D. 42; In bonis Donaldson, 3 P. & D. 45; In bonis Lacroix, 2 P. D. 94; In bonis Gatti, 27 W. R. 323.

2. Every will and other testamentary instrument made the king within the United Kingdom by a British subject (whatever admitted may be the domicile of such person at the time of making if made the same, or at the time of his or her death) shall, as according regards personal estate, be held to be well executed, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made. See In bonis Gally, 1 P. D. 438.

usage.

Change of domicile

not to in

validate will.

3. No will or other testamentary instrument shall be held to be revoked or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent change of domicile of the person making the same.

It is doubtful whether the will of a British subject made in Scotland, where a will is not revoked by marriage, would be revoked by the subsequent acquisition of an English

domicile and the marriage of the testator. In bonis Reid,

1 P. & D. 74.

The validity of wills of personal property, except in the case Domicile. of British subjects dying after August 1861, is governed by the law of the testator's domicile at the date of the death. Anstruther v. Chalmer, 2 Sim. 1; Stanley v. Bernes, 3 Hagg. 373; Price v. Dewhurst, 8 Sim. 279; 4 M. & Cr. 76; Preston v. Melvill, 8 Cl. & F. 1; Craigie v. Lewin, 3 Curt. 435; De Zichy Ferraris v. Lord Hertford, 3 Curt. 468; Bremmer v. Freeman, 10 Moo. P. C. 306; Enohin v. Wylie, 10 H. L. 1; see Eames v. Hacon, 16 Ch. D. 407.

Legislative changes in the law of the country, where the deceased was domiciled, made after his death, though with express reference to his will, cannot be considered in deciding upon the right to have the will proved in this country. Lynch v. Provisional Government of Paraguay, 2 P. & D. 268.

governs

The administration of the personal property of a deceased Domicile person, whether a British subject or not, including the adminis construction of his will, is governed by the law of the tration and testator's domicile at the time of his death. Enohin v. tion of Wylie, 10 W. R. 467; 10 H. L. 1.

In matters of procedure, such as payment of interest on legacies, the Court follows its own practice. Hamilton y. Dallas, 38 L. T. N. S. 215.

construc

will.

The question of domicile is independent of naturalisation Domicile indepenand allegiance. Udny v. Udny, L. R. 1 H. L. Sc. 441; dent of Haldane v. Eckford, 8 Eq. 631; Brunel v. Brunel, 12 Eq. allegiance. 299; Douglas v. Douglas, 12 Eq. 617. The following cases on this point are overruled:-Moorhouse v. Lord, 10 H. L. 272; In re Capdevielle, 2 H. & C. 985; A.-G. v. Countess de Wahlstatt, 3 H. & C. 374; Jopp v. Wood, 34 B. 88; 13 W. R. 481; Maltass v. Maltass, 1 Rob. 67.

According to English law every person has a domicile. If a domicile of choice has not been acquired, the law

Domicile of origin of children.

Of lunatic.

Of married

woman.

attributes to him a domicile, which may be called his domicile of origin.

The domicile of origin of a legitimate child is that of its father, of an illegitimate child that of its mother. Dalhousie v. Macdouall, 7 Cl. & F. 817; Munro v. Munro, 7 Cl. & F. 842; Re Patten, 6 Jur. N. S. 151.

After the death of their father the domicile of infant children is the domicile of the mother as long as she remains a widow. Potinger v. Wightman, 3 Mer. 67; see Johnston v. Beattie, 10 Cl. & F. 42, 66.

It is unsettled whether the capacity of the widow to alter the domicile of her infant children is not lost on her second marriage. See Dicey on Dom., 102, citing Ryall v. Kennedy, 40 N. Y. Sup. Ct. 347, where it was held that upon remarriage of the widow the domicile which infants had immediately before the mother's remarriage remained. The domicile of a person, who is a lunatic when he attains his majority and so remains up to the time of his death, changes with that of his father in the case of a legitimate child and with that of his mother in the case of an illegitimate child, when there is no committee of the person. Sharpe v. Crispin, 1 P. & D. 611.

It is doubtful whether a guardian can change an infant's domicile. Douglas v. Douglas, 12 Eq. 617, 625.

The domicile of a married woman at any given time is the domicile of her husband at that time. Warrender

v. Warrender, 2 Cl. & F. 488; Dalhousie v. Macdouall, 7 Cl. & F. 817; Whitcomb v. Whitcomb, 2 Curt. 351; Dolphin v. Robins, 7 H. L. 390; Bell v. Kennedy, L. R. 1 H. L. Sc. 307.

A married woman living apart from her husband under an agreement for a separation has no power to change her domicile by her own act. Warrender v. Warrender, 2 Cl. & F. 488. In re Daly's Settlement, 25 B. 456.

After a decree for a divorce the wife can select her own domicile. Williams v. Dormer, 2 Rob. 505.