Part VI The Law of Property, 36 Succession
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara WalkerEdited By: Paul Torremans, James J. Fawcett
- Choice of law clauses — Applicable law — Immovables — Movables — Trusts
(p. 1338) 36 Succession1
Presuming that the estate of the deceased has been cleared of debts and all taxes and duties paid, the duty of the administrator is to distribute the property among those to whom it beneficially belongs. These persons are to be identified by the choice of law rules relating to succession and these rules may vary according to whether the estate consists of movables or immovables and whether the deceased left a will or died intestate. It is also necessary to examine the rules relating to the exercise of powers of appointment by will.
Most foreign countries have adopted the principle of unity of succession by which questions relating to intestacy or wills are governed by one single law, the personal law of the deceased, irrespective of the nature of the subject matter. The common law of England has consistently adhered to what is called the principle of scission by which the issues are dealt with separately, with the result that the destination of movables on the death of the owner is governed by the law of his domicile, whilst the destination of immovables is governed by the law of the situs.2 It is for that reason that we have to examine succession to movables separately from succession to immovables.
(a) Intestate succession
The rule has been established for over two hundred and fifty years that movable property in the case of intestacy is to be distributed according to the law of the domicile of the intestate at the time of his death.3 This law determines the class of persons to take, the relative proportions to which the distributees are entitled, the right of representation, the rights of a surviving spouse and all analogous questions.
The fate of movables situated in England and belonging to an intestate who has left no relatives recognised as his successors by the law of the domicile has already been fully discussed.4 Summarily stated, the rule, which derives from the principle that the authority of the law of the domicile is rigorously confined to questions of succession, is this:
If, by the law of the domicile, the movables pass to the state or some other body in the domicile by way of succession, English law gives effect to this ruling;5 if, on the other hand, they are claimed by some body in the domicile as being no-one’s property, they pass to the English Crown as bona vacantia. In this latter case, there is no question of succession to be referred to the law of the domicile.6
The general rule, established both in England and in the USA, is that testamentary succession to movables is governed exclusively by the law of the domicile of the deceased as it existed at the time of his death.7 When a testator dies domiciled abroad leaving assets in England, it is true that probate must be taken out in England, and it is also true that the assets must be administered in England according to English law, but nevertheless all questions concerning beneficial succession under a will must be decided in accordance with the law of the domicile. The duty of the executor is to ascertain who, by the law of the domicile, is entitled under the will and, once that is ascertained, to distribute the property accordingly.8 It is necessary, however, to deal separately with the various questions that arise in the case of wills.
The capacity of a testator to make a will is determined by the law of his domicile;9 and there is no distinction between “lack of capacity due to immaturity or status and incapacity arising from ill health”.10 The meaning of this statement is clear enough if the testator is domiciled in the same country at the time both of his making the will and of his death. If this is a foreign country, his capacity by English law is immaterial. Thus, in a case decided when a married References(p. 1340) woman possessed no testamentary capacity at common law,11 the English court granted probate of the will of a married woman, a domiciled Spaniard, on proof that by Spanish law a wife was empowered to bequeath her movables.12
But what is the position where the testator has changed his domicile after making his will? Is the determinant of the governing law his domicile at death or at the time when he made the will? There is no decision on the matter. Some writers hold that it means the former.13 This is curious, for by English internal law, and presumably by other legal systems, the decisive moment for testing capacity is the time when the will is made. A will made by a minor or by a person of unsound mind cannot be validated by subsequent events. No will can be valid unless it is valid when made. On principle it makes no difference that the subsequent event consists in a change of domicile to a new country where the law has a more favourable rule for capacity. For instance:
a domiciled Hungarian, twenty-two years of age, and therefore (it is assumed) lacking testamentary capacity by Hungarian law, makes a will, but ultimately dies domiciled in England.
It is submitted that the will is void. What is invalid for incapacity in its origin can scarcely be automatically validated by the change of domicile. If, on the other hand,
a domiciled German, sixteen years of age, makes a will, as he is permitted to do by German law, but ultimately dies domiciled in England,14
it is submitted that the will is valid. In fact it is difficult to disagree with the view that testamentary capacity, in the sphere of both internal law and private international law, is governed by the law of the testator’s domicile at the time when the will is made.15
The capacity of a legatee to take a bequest is determined by either the law of his domicile,16 or the law of the testator’s domicile. These determine, for instance, whether he is of full age or whether an unincorporated association is capable of receiving a legacy. Thus, in the case of Re Hellmann’s Will,17 the court did not apply the law of the legatee’s domicile exclusively, but adopted the principle that, where these two laws as to capacity conflict, the one which is most favourable to the propositus is selected.
(ii) Formal validity
According to the common law, domicile was the only connecting factor that determined the law to govern the formal validity of a will of movables. The formal requirements of the law of the country where the testator was domiciled at the time of his death had to be satisfied. His nationality, his domicile at the time of making the will and the place where he executed his will were inadmissible factors. The disadvantages of so rigid a principle were brought to light by the case of Bremer v Freeman in 1857,18 where it was held that a will made in the English References(p. 1341) form by a British subject who died domiciled in France was invalid, since it neglected the formalities prescribed by French law. This decision led to the passing of the Wills Act 1861, often known as Lord Kingsdown’s Act, which was designed to offer testators a wider choice of laws so far as formalities were concerned. Although that Act was a welcome step forward, it was disfigured by several serious blemishes.19 It was badly drafted and was, for example, confined to the wills of British subjects, differentiating moreover between realty and personalty rather than between movables and immovables.
The 1861 Act was repealed and replaced by the Wills Act 196320 which applies to a will, whether of movables or immovables, made by any testator, irrespective of his domicile or nationality, provided that he died on or after 1 January 1964, even though it was executed before that time. A will made before 1964 that satisfies the Wills Act 1861, is, however, admissible to probate notwithstanding the repeal of that Act.21
The gist of the Act of 1963 is that it increased the relevant connecting factors by adding nationality and habitual residence to those which were already recognised by common law and the Wills Act 1861, namely domicile and the place of acting. It provides that “a will shall be treated as properly executed” if its execution conforms to the internal law in force in any one of the following territories:22
(a) The territory where the will was executed, even if the testator was on a temporary visit.23
Where a will is made on board a vessel or aircraft, whether civil or not, the identity of the law of the place of execution receives special statutory treatment. If at the time of execution the aircraft grounded in a particular territory or the vessel is within territorial waters, the testator may comply with the internal law of that territory. Alternatively he may comply with the internal law of the territory with which, having regard to its registration and other relevant circumstances, the vessel or aircraft, whether in course of transit or not, has the closest connection.24 Judged by this test, the law of the place of acting will normally be the law of the flag, which is represented by the law of the territory where the ship or aircraft is registered if the flag is common to a political unit containing a variety of legal systems.25
(b) The territory where the testator was domiciled either at the time of making the will or at death.
(c) The territory where the testator was habitually resident either at the time of making the will or at death.
(d) The state of which the testator, either at the time of making the will or at death, is a national.26
This extension of the civil law principle of nationality, though it is a departure from the common law, does at least unify English and continental European rules so far as the formal validity of wills is concerned and will often save a will that under the old law would have failed. For instance, a will made at Zurich in Dutch form by a citizen of the Netherlands, domiciled References(p. 1342) and habitually resident at all material times in France, is properly executed even though it may be formally void in the eyes of French and Swiss law.
Where, however, reliance is placed on the national law of the testator, there are two situations in which it may be difficult to determine the relevant internal law. The first is where he is simultaneously a national of more than one country. The problem then is to decide whether it is necessary to select one particular nationality to denote the internal law or whether the will shall be formally valid if it satisfies the internal law of any of the nationalities. If the former approach is to be adopted, it has been suggested that the court should select either the nationality of the country in which the testator is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.27 The other approach, namely of upholding the validity of the will if any of the relevant laws is satisfied, is said to conform more closely with the intentions of those who drafted the 1961 Hague Convention on which the Wills Act 1963 is based.28
The second situation that causes difficulty is where the state of which the testator is a national comprises various systems of internal law, as is the case for instance in the United Kingdom or the USA. The 1963 Act solves the problem by providing that the system to be applied shall be ascertained as follows. First, if there is in force throughout the state a rule indicating which of the various systems can properly be applied to the case in question, that rule shall be followed. Failing such a rule, the system shall be that with which the testator was most closely connected at the relevant time.29 The first of these rules is likely to be of little practical benefit because there will be few composite states which have a unified conflict of laws rule but different domestic rules as to the formal validity of wills. It is reasonable to assume that under the second rule the court, in its search for the country with which the testator was most closely connected at the relevant time, will attribute most importance to his domicile and habitual residence. Where, however, he is domiciled and resident other than in the composite state of which he is a national, as is likely to be the case where he is relying on the law of his nationality as the basis of formal validity, the one remaining factor of significance seems to be the situation of his assets. The relevant time at which the connection must exist is specified in the 1963 Act as “the time of the testator’s death where the matter is to be determined by reference to circumstances prevailing at his death, and the time of execution of the will in any other case”.30
More generally, it will have been observed that the time at which the connecting factors of domicile, habitual residence or nationality may indicate an applicable law is either when the will is executed or when the testator dies. In effect, therefore, there are seven statutory rules for the choice of law.31 It would seem that if in fact a will satisfies the requirement of any one of these possible laws it is valid as regards form even though the validating law was not deliberately chosen by the testator. This is the reasonable implication of the statutory provision that “a will shall be treated as properly executed if its execution conformed”32 to one of the prescribed laws.
A testator, for instance, domiciled in country X makes a will in country Y which is formally valid under the law of X but not under the law of Y. He believes that he has satisfied the requirements of the law of the place of execution.
It might be thought that the will is void, since the intention was to conform to the rules of the law of the place of execution, not of the law of the domicile. But the paramount intention of the testator in such a case is to make a valid will and if he achieves this purpose under one possible law his erroneous belief that he is achieving it under another is immaterial.33
The merit of the statutory provision that the legal system to govern formalities (whether it be based on nationality, domicile, habitual residence or place of execution) means the internal law of that system is that the doctrine of renvoi is excluded. This is fortified by the definition of “internal law” as the “law which would apply in a case where no question of the law in force in any other territory or State arose”.34 Nevertheless, for three reasons, this does not mean that renvoi is wholly inapplicable in the case of the formal validity of wills. First, there is the transitional point that the Wills Act 1861 is still applicable to a will made before 1964 and the doctrine of renvoi has been applied under that Act.35 Secondly, the Wills Act 1963 does not, despite the references to domicile, abolish the old common law rule whereby the formal validity of a will may be referred to the law of the testator’s domicile on death,36 including any further legal system referred to by that law.37 Thirdly, the Wills Act 1963 does not take away the right to prove in England a will which has been accepted by a court of the deceased’s last domicile,38 even if that acceptance was based other than on that country’s internal law.
In considering, under the Wills Act 1963, whether a will has been properly executed, regard must be had to the internal law as it existed at the time of execution. Any later alteration of the law, operating retrospectively to that time, may, however, be taken into account if it validates, but not if it invalidates, the will.39
Although it is clear that the capacity of a testator is governed by his personal law, and therefore not necessarily by the law that governs the formal validity of his will, it may sometimes be troublesome to determine whether or not a given rule affects capacity.
Suppose, for instance, that the testator, Dutch by nationality and by domicile, makes a holograph will in France and leaves assets in England. Both English and French law recognise holograph wills, but the original Article 992 of the Netherlands Civil Code forbade a Dutch national to make such a will abroad.
If the proper execution of the will were to be questioned in England, the court would have to determine the scope of the rule contained in Article 992. If it imposed an incapacity upon the testator, it must be enforced; if it related to formalities, it must be ignored. Such a problem is dealt with by the following section of the Wills Act 1963.40
Where (whether in pursuance of this Act or not) a law in force outside the United Kingdom falls to be applied in relation to a will, any requirement of that law whereby special formalities are to be observed by testators answering a particular description, or witnesses to the References(p. 1344) execution of a will are to possess certain qualifications, shall be treated, notwithstanding any rule of that law to the contrary, as a formal requirement.
In the hypothetical case suggested above, therefore, the will made in France would be formally valid in the eyes of English law.
International form of will
Increased mobility has meant an increase in the number of people who make wills in a country in which they are not domiciled or habitually resident or of which they are not nationals. Undoubtedly the Convention which led to the Wills Act 1963 has done much to assist with this problem; but a further step has been taken with the United Kingdom’s ratification of the Washington Convention on International Wills (1973).41 The Annex to the Convention was brought into force by section 27 of the Administration of Justice Act 1982 and is scheduled to that Act. Its essential provision42 is that a will shall be formally valid in all the Contracting States if it complies with the formalities laid down in the Convention, irrespective of where the will was made, the location of the assets or the nationality, domicile or residence of the testator. The main formalities43 are that the will be in writing (in any language) and signed or acknowledged by the testator in the presence of two witnesses and an “authorised person” (which in England is a solicitor or a notary public),44 who have then to attest the will in the presence of the testator. The authorised person has to attach to the will a certificate in the form prescribed by the Convention,45 authenticating the will and its proper execution.
In essence, the Convention provides a new, additional form for a will which a Contracting State must recognise as formally valid. It may also be recognised in a non-Contracting State under general choice of law rules, as where that state looks to the law of the domicile of the testator and the testator was domiciled in a state which is a party to the Convention and his will had complied with the Convention even though not with the formal requirements of his domiciliary law.46
(iii) Essential validity
The essential, or material, validity of a will, and of any particular gift of movables therein is determined by the law of the country in which the testator was domiciled at death.47 This rule is not affected by the Wills Act 1963. A will may be admitted to probate under that statute as having complied with the formalities of one of the legal systems that it makes available, but the actual effect of its dispositions must be measured by the law of the testator’s domicile at death. The grant of probate is conclusive proof that the instrument proved is the will of the testator but it is not conclusive as to the validity of the dispositions.
If, for instance, a British subject dies domiciled in France, having made a will in England according to English law, probate is necessarily granted. But if he has neglected to leave to his References(p. 1345) children that portion of the estate required by French law, the English court allows the will to take effect only as it would do in France. If French law regards the testamentary dispositions as ineffective, the court directs the property to be distributed according to the French law of intestacy;48 if French law requires only part of the estate to go to the children, the will would be valid as to the rest with the bequests proportionately reduced.49
The principle that the law of the domicile at death is decisive is well illustrated by the reverse case to that just given. An example is afforded by Re Groos, Groos v Groos:50
A Dutch woman made her will in the Netherlands constituting her husband heir of her movable property except for the “legitimate portion to which her descendants were entitled”. She died domiciled in England, leaving her husband and five children surviving. By Dutch law the “legitimate portion” of the children was three-fourths of the estate, but by English law it was nothing. It was held that, since the will operated under English law, the whole estate passed to the husband.
Whether a beneficiary is entitled to take under a will is determined by the law of the testator’s domicile if the question turns on a rule of substantive law, not on procedure. In the case of Re Cohn:51
A testatrix and her daughter, both domiciled in Germany, were killed in an air raid in London in circumstances which left it uncertain which of them died first. The daughter’s estate was entitled to movables under her mother’s will, but only if she were the survivor. In such a case the English rule is that the younger person is presumed to have survived the elder,52 but the presumption by German law was that they died simultaneously.
These presumptions were classified as falling within the sphere of substantive law, and it was held that the German view must be adopted. On the other hand, the English rule relating to the burden of proof of testamentary capacity has been classified as procedural and governed by the law of the forum.53
Other examples of questions of substance are whether a gift to an attesting witness, or to the relative of an attesting witness, is valid,54 whether the testator acted under duress or undue influence,55 and whether a beneficiary is put to his election.56 Similarly, legislation empowering the court to make an order for such provision out of the estate as is adequate to support the dependants of the deceased would appear to be a matter of substance applicable only if the testator died domiciled within the jurisdiction.57
References(p. 1346) It should not be assumed that because a testator dies domiciled in England his will is therefore inevitably subject to all the rules of English domestic law concerned with essential validity. This fact has not always been admitted. It has been said,58 for instance, that whether a restraint on marriage or a gift to a charity is valid, or whether a limitation is void as infringing the rule against perpetuities,59 must be determined by the law of the testator’s domicile no matter what the domicile of the beneficiary may be. It is submitted that this view is neither consonant with principle nor warranted by the authorities. It entirely ignores the essential difference between the right to give and the right to receive. The two are not necessarily analogous. The right of a testator to give, for example as to whether he is free to bequeath the whole of his property as it pleases him or on the contrary whether he must reserve a legitimate portion for his children, is of necessity governed by the English law of succession from which his testamentary power of disposition is derived. But there is no reason why this law should restrict the right of a foreign legatee to enjoy a gift in accordance with the terms of the will, provided that the legacy is valid according to his personal law and provided that the limitations imposed on its enjoyment do not offend some rule of public policy so sacred in English eyes as to demand extra-territorial application.
Suppose that a testator domiciled in England bequeaths a sum of money to a legatee domiciled in France, and that the legacy, though valid by French law, is void by English internal law as being obnoxious to the perpetuity rule.
If the English policy is to insist on the early vesting of interests regardless of where the property is to be enjoyed and administered then the legacy must be regarded as void. Such a suggestion is, however, untenable. The object of the perpetuity rule is to restrict the withdrawal of property from the channels of commerce, a purpose which is clearly local, and which, therefore, cannot justifiably be invoked to destroy a bequest of money that is to be enjoyed and administered in a foreign country. As Lord Cottenham said in an early case:
The rules acted upon by the courts in this country with respect to testamentary dispositions tending to perpetuities relate to this country only . . . The fund [given by the English will] being to be administered in a foreign country is payable here though the purpose to which it is to be applied would have been illegal if the administration of the fund had been to take place in this country.60
This conclusion has been reached several times by the New York Court of Appeals61 and on one occasion at least by an Australian court.62 In the laconic words of one judge: “It is no part of the policy of the State of New York to interdict perpetuities or gifts in mortmain in Pennsylvania or California.”63
Suppose that a testator, domiciled in England, leaves a sum of money in trust that the income thereof shall be used for purposes most conducive to the good of religion in a certain diocese in country X, and that persons domiciled in X are appointed to administer the trust.64
(p. 1347) The trust is invalid by English law as not being charitable;65 but, if it is valid by the law of X, must the court forbid payment of the money to the trustees? Again, such a ruling would be indefensible. English law confines the definition of a charity within comparatively narrow limits, presumably with the object of restricting the amount of money that may be withdrawn from circulation, but it cannot justifiably claim to impose this policy on foreign countries. The decisive factor is the law of the country where the trust is to be administered, ie its proper law, not the law that governs the instrument of gift.66 Three conditions must be satisfied before transfer of the money to the foreign country will be authorised. First, the charitable bequest must be valid according to its proper law, the law of the country where it is to be administered. Secondly, there must be persons in that country willing and competent to undertake the task of administration.67 Thirdly, the purposes for which the bequest is to be employed must not conflict with some rule of English public policy intended to operate extra-territorially. It can scarcely be maintained that a rule which confines within narrow limits the possible beneficiaries of a charitable gift is intended to be anything more than local in its operation.68
It would seem, then, that the principle which refers questions of substantial validity to the law of the testator’s domicile is not unqualified.
The province of construction is to ascertain the expressed intentions of the testator, ie the meaning which the words of the will, when properly interpreted, convey. If the intention is expressed in a manner that leaves no room for doubt, the aid of private international law is unnecessary. This is because the duty of any court, no matter in which country it may sit, is to give effect to expressed intentions and, if these are clear, there can be no occasion to test the language of the will by reference to any particular legal system. If, however, the language of the will leaves the intention doubtful, or if it uses expressions which are ambiguous or equivocal or if the testator has failed to provide for certain events which have not been covered by his dispositions, a problem of choice of law arises, for it is essential that the doubtful intention of the testator should be ascertained by reference to rules of construction obtaining in one particular system of law. The consequences may be serious according to whether this law or that law is chosen, for when it is said that the intention of the testator is the sovereign guide in questions of construction, this does not mean that his language is necessarily to be construed in a manner that would commend itself to an intelligent man, but that it must be read in the light of those technical rules of construction recognised by the governing legal system.
It will be seen, therefore, that in choosing a law to govern construction it is desirable to discover that system with which the testator was most intimately acquainted, and which it is just to presume that he had in mind when drafting his will.69 Certain expressions, such as “next of kin”, bear different meanings in different countries, and it is obvious that the intention of a testator may be defeated unless the legal system with reference to which he wrote his will is correctly ascertained.
References(p. 1348) The law with which the ordinary person is most familiar is the law of his existing domicile, and, despite the fact that certain authorities choose the domicile at death as the controlling factor,70 it is more consonant with the desire of the court to implement the intention of the testator to say that the law of the domicile at the time when his will is made governs its construction, unless there is evidence indicating that his mind was directed to some other legal system. This approach is supported by section 4 of the Wills Act 1963 which provides that the “construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will”.71
In most cases, of course, the domicile does not change after the will has been made and examples can readily be provided of the application of the law of the domicile being unchanged between the making of the will and death. Where, for instance, a domiciled Englishman bequeathed a legacy to the “next of kin” of a foreigner, it was held that the legatees must be ascertained according to English law.72 Whether a gift in the will of a domiciled Englishman was a satisfaction of a debt due under a Scottish settlement was tested by reference to English law.73 Words of value or of quantity or of measurement, which vary in meaning in different countries, have been interpreted according to the law of the testator’s domicile.74
There is, however, no absolute rule that the interpretation of a will depends on the law of the testator’s domicile. It is merely a prima facie rule that is displaced if the testator has manifestly contemplated and intended that his will should be construed according to some other system of law.75 Thus where a domiciled Frenchwoman left an unattested will valid by the law of France, in which she said that the will was to “be considered in England the same as in France”, Stirling J held, on the question whether the document operated as the execution of a power, that the testatrix wrote with reference to English law.76
Since the rules relating to revocation vary from country to country,77 the problem is to ascertain the law that determines what suffices to revoke an existing will. According to English internal law, a will may be voluntarily revoked either by a fresh will or by its destruction, or obliteration, with the intention of revoking it, by the testator himself or by some authorised person in his presence. Further, its automatic revocation may result from the later marriage of the testator. These three methods will serve as the basis on which to discuss the problem of the choice of law.
(a) Revocation by later will
A will purporting to revoke an earlier will is formally valid and effective if it satisfies the requirements of any one of the laws by which, under the Wills Act 1963, its formal validity is determinable. Suppose, for instance, that a testator domiciled in England makes a will in (p. 1349) the English form revoking an earlier will that he had made when domiciled in France. The revocation is effective even if ineffective according to French law.
The Wills Act 1963, however, goes further. It provides that the revoking will shall be effective if it complies with the requirements of any one of the laws qualified to govern the formal validity of the earlier will.78 The mere fact that, at the time of his death, the testator has become subject to another testamentary law is not to upset what he lawfully and intentionally did according to a law that governed him in the past. Thus, to reverse the illustration suggested above, the revocation would be effective if contained in a will that was formally void by English law but valid according to the law of France.
It should be noted, however, that a testator may make a valid English will which does not revoke an earlier will in foreign form where the latter deals solely with property in a foreign country and the English will deals only with English property, even though it contains a revocation clause.79
(b) Revocation by destruction of the will
The Private International Law Committee recommended in 1958 that the effect of the destruction of a will should be determinable by any one of the laws capable of governing the formal validity of the testator’s will, had he chosen to make one.80 This proposal has not been accepted by the legislature. The Wills Act 1963 deals only with a testamentary revocation. Hence, the problem of choice of law in the case of acts such as destruction of the will, or obliteration of some of its provisions, must be solved on the basis of the common law principle of domicile.81 But what is the decisive domicile in this context? The question is superfluous if the testator has lived in the same country throughout his life, since there is only one possible domiciliary law. It requires an answer, however, if he possessed one domicile at the time of the act of destruction, and another at the time of death, for what is an effective revocation by the earlier law of the domicile, may be ineffective by the later.
Suppose, for instance, that a testator domiciled in Quebec sent written instructions to his solicitor to destroy his will. The will was accordingly burnt and was thereby revoked in the eyes of Quebec law. The testator died domiciled in England. English internal law would not regard the revocation as effective since the burning was not carried out in the presence of the testator.82
Since the testator died subject to English law, could it successfully be contended that his will, presuming its contents to be ascertainable, was still operative? It is submitted that such a contention would be ill-founded. The legal effect of the act of destruction fell to be determined at the time of its performance. The testator intended to revoke his will. He fulfilled his intention by an act that was regarded as final and effective by the law to which he was then subject. There was no other law available to him.83 The mind recoils from the suggestion that the effect of such an act within the law might be nullified or changed merely because at some later period in his life he happened to be subjected to a different legal system. It requires something more than this to undo what has lawfully and intentionally been done in the past.
References(p. 1350) The same reasoning applies to the reverse case. If the act of destruction were sufficient by English law but insufficient by Quebec law, the will would remain unrevoked. A chance change of domicile could scarcely infuse life into an act that was legally stillborn.84
(c) Revocation by marriage
The rule of English law is that a will is revoked by marriage unless it is explicitly expressed to be made in contemplation of marriage.85 Few other legal systems have adopted the rule and so choice of law problems may arise. When a person marries after making a will and then dies leaving movables in some other country, the question may arise as to whether the law of his domicile at the time of marriage or at the time of death determines the effect of the marriage on the will.86 The answer to this question depends on whether the rule as to revocation by marriage is to be classified as a rule of matrimonial law or of testamentary law. If it is a rule concerning the former, then its effect must be tested by the law of the domicile at the time of marriage; if on the other hand, it has nothing to do with the matrimonial regime at all, its effect is to be measured by the law of the domicile at the date of death. It would seem scarcely open to doubt that it is essentially a doctrine connected with the relationship of marriage, and that this is so was affirmed in the case of Re Martin, Loustalan v Loustalan,87 where a woman, after making a will, married a man domiciled in England and subsequently died domiciled in France. By English internal law a will is revoked by marriage, but this is not so under French law. In order to decide whether the will was revoked it was necessary to decide whether this was a matrimonial question governed by English law or a testamentary question governed by French law. Vaughan-Williams LJ in the Court of Appeal held88 that the question was one of matrimonial law, English law applied and the will was revoked.
As the relevant domicile is that at the time of the marriage, the effect of a change of domicile may be shown by the following two examples:
A makes a will while domiciled in England; then he acquires a domicile in Scotland (where marriage does not revoke a will); he later marries in Scotland, and ultimately dies domiciled in England.89
In this case the will stands. English law applies only as being the governing testamentary law under which A dies, and therefore its doctrine as to the effect of marriage cannot affect a marriage that took place when the parties had a foreign domicile. The reverse case to that just put is as follows:
A makes a will while domiciled in Scotland, then acquires an English domicile and later marries in England.
Here the question as to revocation is governed by English law as being the law applicable to all matters concerning the matrimonial regime.
It has been assumed so far that the spouses have a common domicile on marriage. However, this may not always be the case, given that a wife may have a domicile independent from References(p. 1351) that of her husband.90 As domicile for the purposes of revocation of a will by marriage is to be determined as at the time of marriage, there may be some cases where a wife retains her separate domicile notwithstanding her marriage. If so, the law of that country will determine whether her will is revoked by marriage.
(a) Intestate succession
Accordingly, where the owner of immovables dies intestate, the order of descent or distribution prescribed by the law of the situs is applied by the English court no matter what his domicile may have been.95 This rule can be criticised on a number of grounds.96 It is an historical anomaly from the time before 1926 when intestate succession to land was subject to rules different from intestate succession to personalty. Domestic legislation on intestate succession would seem to be based on the assumption, erroneous in fact, that succession to all the intestate’s property will be governed by the same law. This is particularly striking with regard to the statutory legacies which go to a surviving spouse under the law of England97 and of Northern Ireland.98 Can a widow claim two such statutory legacies, one based on land in England and the other on personalty in Northern Ireland?99 The operation of the rule may be illustrated by two decisions.
The first is an Irish case, Re Rea100 in which:
A domiciled Irishman died intestate without issue in Ireland, owning land in both Ireland and Victoria. In such circumstances a widow was entitled by a Victorian statute to a charge of £1,000 on land in the colony and by an Irish statute to a charge of £500 payable out of the real and personal estate in Ireland. The land in Victoria having been sold and the proceeds remitted to Ireland, it was held that the widow was entitled to the £1,000 under the Victorian statute, as well as the £500 under the Irish statute, since her rights were those conferred by the law of the situs.
(p. 1352) The second, and more recent, decision is Re Collens:101
The deceased died in 1966. He was intestate and died domiciled in Trinidad and Tobago, leaving property there, in Barbados and in England. The property in England included immovable property. There was a dispute over succession to the estate and it was agreed that the deceased’s second wife should receive $1 million in settlement of any claim to the property in Trinidad and Tobago, but that succession to the estate in Barbados and England should be governed by their respective laws. It was not contested that English law as the law of the situs governed the intestate succession to the English immovables. The question for the court was whether the second wife could take, not only the $1 million agreed under the law of the deceased’s domicile, but also the statutory legacy due to a widow under the English law of intestacy.
Sir Nicolas Browne-Wilkinson V-C was reluctant to see the widow succeed both under the law of the domicile and to the statutory legacy under English law, as the law of the situs. Nevertheless he was unable to interpret either the English statutory provisions or the choice of law rules so as to lead to any other result. Although he saw force in the criticisms of this state of the law, he felt obliged to conclude that “my job is to administer the law as it now is”.102
The general rule in the case of testamentary succession to immovables is, as with intestate succession, that it is the law of the situs of the immovables which governs.103 Though there are fewer authorities relating to wills of immovables, it may be helpful to consider the various issues that may arise in the same order as with wills of movables.
There seems little doubt that the law of the situs exclusively determines whether the testator has capacity to make a will of immovables,104 and also probably capacity to take a bequest.
At common law, a will of immovables had to comply with the formal requirements of the law of the situs.105 However, as with wills of movables,106 the common law principles have been much enlarged by the Wills Act 1963. It is sufficient for the will to comply with any one of the seven laws specified in section 1 of the Act in relation to movables, namely the territory where the testator was domiciled or habitually resident or of which he was a national, either when the will was executed or when the testator died, or the territory where the will was executed. Furthermore, the common law rule, ie compliance with the formalities of the law of the situs, is also retained in the case of immovables.107 However, reference in the Wills Act to the law of the situs is in terms of “the internal law in force in the territory where the property was situated”108 and the reference to the “internal law” of the situs seems to exclude the doctrine of renvoi.109
References(p. 1353) (iii) Essential validity
There is no doubt110 that the law of the situs, including its choice of law rules (which means that the doctrine of renvoi111 is applicable), governs matters of essential validity. This rule has been applied to such issues as whether the bequest contravenes the rule against perpetuities or against accumulations,112 whether gifts to charities are valid,113 whether a proportion of the estate has to be left to the children or to a surviving spouse,114 whether a power to assign part of the estate is valid,115 and, indeed, whether the land can be devised at all.116
A matter of considerable practical importance is whether a court can order payment to be made out of the estate for the support of dependants. In the case of movables, we have seen117 that, under the Inheritance (Provision for Family and Dependants) Act 1975, an English court can make such an order only if the testator died domiciled in England. It might, therefore, have been expected that, in the case of an estate of immovable property, the 1975 Act would have been applicable if England was the law of the situs.118 Unfortunately the 1975 Act is seriously defective119 in that the court can only make an order in the case of immovables, as well as movables, if the testator died domiciled in England.120 This means that, in the case of a testator who dies domiciled in a country which applies the law of the situs rule such as New South Wales121 or New Zealand,122 no provision for support can be made out of the English immovable property. The foreign court has no power because of the English situs and the English court has no power because of the foreign domicile.
A somewhat difficult question arises with regard to the construction of wills of immovables. It has been seen that a bequest of movables is construed according to the law intended by the testator, which is generally the law of his domicile at the time when he prepared his will.123 The problem is whether the English authorities extend the same rule to wills of immovables, or whether they require that exclusive regard shall be paid to the law of the situs.
It is submitted that there is little difficulty if we resort to first principles, and determine what are the natural provinces of the law of the domicile and of the law of the situs respectively in this matter. The objective of all courts, when dealing with a will, is first to ascertain the intention of the testator and then to give effect to that intention so far as is consonant with the governing law. In the ascertainment of this intention in a case where the will has reference to more than one country, it may be a matter of great moment whether the testator’s language is read in the light of this or that legal system. This is because it frequently happens that the References(p. 1354) same word or phrase, such as “heirs of the body”, bears a different signification in different countries. It follows, therefore, in such a case that the result which the testator intended will not ensue unless we discover the system of law which he had in mind when he wrote the will. The presumption should be in favour of the law of the domicile at the time of the making of the will, for that is the system of law under which he lives and with which he is expected to be familiar.
It may, of course, be some other system, such as the law of the situs, for the inquiry turns wholly on intention, and if there is anything clearly indicative of a desire to exclude the law of the domicile, the will must be construed accordingly.124 Thus, if a domiciled Englishman, possessing land in Scotland, were to adopt in his will the terms “liferent” and “fee”, it would be reasonable to conclude that he wished Scots law to govern his disposition; similarly, if he made one will for the land and a separate will for his English property.125
Where a testator is domiciled in one country and has land in another, the fact to be borne in mind, then, is that the law of the situs, as such, has no paramount claim to exclusive recognition.126 Otherwise the result may be to defeat a testator’s intention, for he may leave property, not to named persons, but to those persons who would be entitled were he to die intestate. It is obvious, in such a case, that his intention is to benefit the successors admitted by the law of his domicile, since it is that system with which he is familiar, and it can scarcely be denied that arbitrarily to make a new will for him by admitting a different line of succession imposed by the law of a foreign situs, merely because the will includes a certain amount of land situated abroad, would constitute a departure from principle.
The adoption of this principle does not infringe any local rule of the law of the situs; nor does it derogate from the sovereign power of the country in which the land is situated. All courts, in administering private international law, desire to give effect to expressed intentions, provided that this does not conflict with the public policy of the forum or of the situs, and it is a matter of indifference that A takes land under a will that has been construed according to the law of the testator’s domicile, though B would have taken had the construction been that of the law of the situs. This, however, gives us the clue to the limits of the doctrine. If the rules of the law of the situs make it illegal or impossible to give effect to the will as construed by the system of law intended by the testator, the general principle must perforce give way, and the construction adopted must be that of the law of the situs.127 Or, again, if the interest arising from a will that has been so construed possesses incidents different in the situs from those recognised by the law of the domicile, the law of the situs must prevail, for it is that law which determines the nature and extent of estates and interests in immovables.
The principle may, then, be stated as follows:
A will of immovables must be construed according to the system of law intended by the testator. This is presumed to be the law of the domicile at the time when the will is made, but the presumption will be rebutted if evidence is adduced from the language of the will proving that he made his dispositions with reference to some other legal system. If, however, the interest that arises from such construction is not permitted or not recognised by the law of the situs, the latter law must prevail.
(p. 1355) It was decided in Studd v Cook,128 an appeal to the House of Lords from the Court of Session in Scotland, that the size of estate which a devisee takes depends on the law of the testator’s domicile. In that case:
A domiciled Englishman devised land in both England and Scotland to the use of X for his life, without impeachment of waste, remainder to the use of the first and every other son of X, “successively, according to their respective seniorities, in tail male”. By English law X took a mere life interest, but by Scottish law he was entitled to the fee simple. It was held that the testator clearly intended the limitations of his will to be understood in their English sense, since he had used technical language familiar to English conveyancing, and that therefore his intention was effective so far as the law of Scotland permitted.
This case is distinguishable from Re Miller, Bailie v Miller,129 in which:
By a trust disposition made in Scots form but sufficient to constitute a valid will by English law, A, a domiciled Scotsman, gave his lands in Scotland and England “for behoof of my eldest son, James . . . and the heirs male of his body in fee”, with remainders over. James died without issue and without having executed any disentailing assurance of the English land. He made, however, a trust disposition in Scots form, executed in the manner required by English law for the execution of wills, by which he disposed of the whole of his real and personal property. By English law, as it then stood, the will of James was ineffectual to pass the estate tail in the English land. By Scots law the will of A did not create a strict entail but gave James an interest that he could dispose of either inter vivos or by will. It was held that the question whether James had power to dispose of his London house by will must be decided according to English law.
It would seem that the decision in Miller is not inconsistent with Studd v Cook, where it was decided that a will should be construed according to the law of the domicile in order to ascertain the size and nature of the interest that the testator intended to give.
The idea that a will of immovables does not necessarily depend in all matters on the law of the situs may also be illustrated by decisions dealing with the doctrine of election.
Suppose, for instance, that a domiciled Englishman makes a will by which he devises his son’s foreign land to X but gives £50,000 out of his own property to his son. The rule of domestic English law applicable to these circumstances is that, if the testator clearly intended to dispose of the land in favour of X, the son cannot claim the whole of the £50,000 unless he adopts the testamentary disposition of the land. He must elect, ie he must either keep the land and have the legacy correspondingly reduced, or must recognise the whole of the will by taking his legacy in full and abandoning the land to X. Election is based on the presumption that a testator intends his will to take effect in its entirety.
The rule of English private international law is now well settled that, where a testator disposes of property in more countries than one, the question whether a beneficiary is put to his election is governed by the law of the testator’s domicile.130 This is so even though the subject matter of the election is land situated abroad, for, though the courts of the domicile cannot withhold the land from the person to whom it belongs according to the law of the situs, they (p. 1356) can, in the administration of the movables which is their particular province, insist that if he retains the land contrary to the will he shall compensate the disappointed beneficiaries by relinquishing the whole or part of the legacy.131 The English court in adopting this attitude does not interfere with the law of the situs. The foreign heir comes to the court, not as heir to the land, over which the court has no jurisdiction, but as legatee of movable property which is being administered in England. It can thus be said to him: “We have no power to dispense with the provisions of the foreign law relating to wills of land, but you come to us as legatee under the will of a testator domiciled in England; and if you claim the legacy you must also recognise the disposition which the will has purported to make of the land.” It is always open to the heir to ignore the English administration and to claim the land under the territorial law.132
If a case involving the doctrine of election falls to be considered in England, the court turns to the law of the testator’s domicile. That domicile may be English or foreign. If it is English, the court merely considers whether the domestic doctrine of election is applicable to the circumstances in question; if it is foreign, its sole guide is the law of the foreign domicile.133 In Balfour v Scott:134
A person domiciled in England died intestate leaving immovables in Scotland. The heir to the Scottish land was also one of the next of kin, and as such he claimed a share of the English movables. It was objected to this claim that, by the law of Scotland, an heir could not share in movables unless he consented to the immovables being massed with the movables so as to form one common subject of division. This, however, was not the English rule, and it was therefore held that the heir could take his share as one of the next of kin without complying with the rule of the law of the situs.
As far as private international law is concerned, the question of election generally arises where the testator devises his own land away from the heir by a will that is void, either formally or essentially, according to the law of the situs, but bequeaths by a valid will a legacy to the rejected heir. An issue which arises here is whether the heir must elect, ie if he claims the land on the ground that the will is invalid, can he retain the legacy in full or must he make compensation out of it to the disappointed devisee?
This situation was possible in England prior to 1837 in a purely domestic case, for, until the law was altered by the Wills Act 1837, the formalities necessary for a valid will varied according to whether the subject matter of the disposition was realty or personalty. In this state of the law it was established as early as 1749 in Hearle v Greenbank135 that, if a testator devised his English freeholds to a stranger and bequeathed legacies to the heir-at-law in a will that was valid as to personalty but void as to realty, the heir was not bound to elect, unless there was an express direction that anyone who disputed any part of the will should forfeit all benefits.136 He was entitled both to the land and to the legacies. Although this situation can (p. 1357) no longer arise in the case of an English will disposing of English property, it may well be so where the testator is domiciled abroad. Suppose that a testator domiciled in Italy makes a will by which he devises his English entailed interests to X and bequeaths a legacy to Y, who is his heir-at-law according to English law. The will is formally valid by Italian law but ineffective by English law. In such a case as this it has been held, following the principle of Hearle v Greenbank, that the English heir is not put to his election.137 He can claim the land as heir against the invalid will of realty, and retain the legacy under the bequest which, since its validity falls to be determined by the law of the domicile, is invulnerable. This is an example of that “special tenderness” which the courts have always shown to the heir-at-law of English land,138 though given that the heir has been abolished for fee simple estates in England it is doubtful whether a similar indulgence will be extended to those relatives who are entitled to the residuary estate of an intestate person. It is an inequitable privilege established by the courts at a time when they particularly favoured the heir-at-law and frowned on any attempt to defeat his rights.
This tenderness has never been shown to a foreign heir, ie to the heir entitled to take foreign land under the rules of intestate succession recognised by the law of the situs. The attitude of English law with regard to election in a case of this sort can be illustrated by Re Ogilvie,139 where the facts; were as follows:
A domiciled Englishwoman devised her land in Paraguay to a charity and gave legacies to the persons who were the obligatory heirs of the land according to Paraguayan law. The charitable devise was void by the law of the situs to the extent of four-fifths, which was the portion reserved for the obligatory heirs. Moreover, according to the law of the situs, the right of an heir to his legal portion was not affected by any other benefit that he might have received under the will.
In a case of this description, English law, as being the law of the testator’s domicile, determines whether the foreign heir is to be put to his election. This raises the question of construction whether the testator has manifested an intention to pass the foreign land for, if he has, then despite the invalidity of the will by the law of the situs the doctrine of election becomes applicable.140 The rule evolved by English courts on this matter is that the foreign property must be described either specifically or by necessary implication.141 Thus, if a testator uses only general descriptive words, as for example where he says, “I devise all my estate, whatsoever or wheresoever, whether in possession or reversion”, he is taken to intend that his disposition shall be restricted to such land as he is empowered to pass by a will executed in that particular form.142 There was no difficulty of this sort in Re Ogilvie, since the testatrix had shown a plain intention to pass the Paraguayan property, and therefore it was held that the obligatory heirs must elect between what they took under the law of the situs owing to the invalidity of the charitable devise and what they were given in the shape of legacies by the will.143
As with the case of a will of movables,144 a will relating to immovables may be revoked by a later valid will and its validity will depend on the rules discussed earlier.145 It should be mentioned that the provisions of the Wills Act 1963 relating to the testamentary revocation of an earlier will apply to a will of immovables as to a will of movables.146 In the case of revocation by destruction or obliteration of the will, there is US authority for referring this issue to the law of the situs, as in Re Barrie’s Estate147 where the testatrix, who was domiciled in Illinois, wrote “void” across the will several times. The effect of such an act was determined not by the law of Illinois but by that of Iowa, the situs of her immovable property.
Finally, in the case of revocation by subsequent marriage, we have seen that,148 in the case of movables, such revocation is generally to be regarded as an aspect of matrimonial law to be governed by the domiciliary law at the time of marriage rather than of death. Such an approach would indicate that, in the case of the revocation of a will of immovables by a subsequent marriage, reference should also be made to the law of the domicile at marriage and not to the law of the situs. Despite one English decision to the contrary,149 it is suggested that the view just expressed is correct and support for it is to be found in the Australian decision in Re Micallef’s Estate:150
The testator, who was at all material times domiciled and resident in Malta, owned land in New South Wales. In 1970 he made a valid will disposing of all his property, including the land. He married in Malta in 1972 and died in 1973. Under Maltese law, the marriage did not revoke the will; under New South Wales law it did.
The court could find no policy justifying the imposition of New South Wales law on Maltese parties to a Maltese marriage. Furthermore, there was no justification for departing from the rule applicable to movable property.151
Previous harmonisation measures in the field of succession have been of mixed result. The successful harmonisation of choice of law rules in relation to the formal validity of wills152 is to be contrasted with the disappointing outcome of work at the Hague Conference on Private International Law in producing the 1989 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons.153
With regard to the European Community, the 1998 Vienna Action Plan154 placed among its priorities the adoption of a European instrument concerning conflict rules of succession.155References(p. 1359) The Hague Programme156 called upon the European Commission to present a Green Paper covering jurisdiction, applicable law, and recognition, together with administrative measures relating to wills. The Commission’s Green Paper on Succession and Wills was issued in 2006,157 commencing a broad-based consultation process concerning testate and intestate succession having an international dimension. In October 2009, the European Commission announced the publication of their proposal. The resulting Regulation, the Succession Regulation,158 was completed in July 2012 and applies to the estates of individuals who die after 17 August 2015.159 The United Kingdom did not “opt-in” to the Succession Regulation,160 therefore the common law will continue to apply in England.
The Succession Regulation provides rules relating to jurisdiction, applicable law and the recognition and enforcement of decisions as well as the enforcement of authentic instruments. It also introduces a European Certificate of Succession. The default basis for jurisdiction and applicable law is the habitual residence of the deceased at the time of death.161 However the Regulation also provides choice of court,162 and importantly, choice of law clauses.163 The choice of law provisions have universal application,164 so they can assist British nationals who are habitually resident in another EU Member State. An individual can select the law of their nationality under Article 22 of the Succession Regulation. If the individual has more than one nationality they can select whichever one they wish.165 The designated law will apply to the succession as a whole,166 including the substantive validity of the act (or document) where the choice of law clause was made.167 Therefore if an English national makes a choice of law clause in favour of English law in a will, the court with jurisdiction will have to apply English law to determine the succession and the substantive validity of the will. This would be English internal law only as the application of renvoi is excluded in relation to choice of law clauses.168 English nationals living in the EU would be wise to include a choice of law clause in their will, if they want English law to continue to determine their succession.169
5. Powers of Appointment Exercised by Will170
Under English law, instead of disposing directly of his property, a person, either in a settlement or in his will, can nominate a person who, in his own References(p. 1360) will,171 shall have the power to specify the ultimate recipient of the property which is the subject matter of the original settlement or will. For example:
A in his will could leave the property to trustees to pay the income to B and then to transfer the capital to whoever B, in his will, appointed. In this case, A is described as the donor of the power of appointment and B is the donee of the power, or appointor. Whoever B selects as the beneficiary is described as the appointee.
There are two kinds of powers of appointment—general and special—and we shall see that this may be of significance in determining the appropriate choice of law rules. If the donee of the power, B in the above example, can appoint anyone he chooses, including himself, the power is general. If, however, the donor of the power, A, limits, in the instrument creating the power, the people or class of people among whom B can appoint, the power is special. One significance of the difference is that in the case of a special power B, the appointor, is clearly seen to be disposing of A’s property, rather than his own, for A, the donee, has determined the class within which B must choose. In the case of a general power, though it may in strict theory still be true that B is disposing of A’s property, this is more apparent than real, as B has the same freedom of choice as if the property was his own, including the power to appoint himself.
Choice of law problems may arise from powers of appointment exercised by will in a number of ways. It may be that the donor, the appointor and appointee all have different domiciles. Whilst it might seem logical to refer the essential validity of, for instance, the will of the donor which created the power (the instrument of creation) to the law of his domicile on death and the validity of the exercise of the power by will (the instrument of appointment) to the law of the donee’s domicile on death, problems arise if the donee dies domiciled in a civil law country, such as France, where the concept of a power of appointment is unknown. The only practical answer would seem to be to refer to the law governing the instrument of creation. There is the further problem that, in the case of immovables, the law of the situs may be different from that of any of the relevant domiciles, though most of the cases are in fact concerned with movables.172
It can readily be argued that the law governing the instrument of creation should govern in the case of a special power, for the donee is manifestly no more than the agent for disposal of the appointor’s property. As we have seen, this is less obviously true in the case of a general power which then poses a preliminary choice of law problem. If the main choice of law rule may depend on whether a power is special or general, by what law is that issue to be determined? After examining that question, we shall consider the other more general choice of law matters relating to powers of appointment exercised by will.
It is not always easy in a domestic system of law to decide whether a power is general or special. Also, more significantly, different legal systems which are familiar with powers of appointment may classify them differently.173 As a matter of principle, it seems right that the nature of the power, ie as to whether it is special or general, should be determined by the law governing the instrument which created the power.
Considerations different from those relevant to testamentary capacity174 apply to the question of capacity to exercise a testamentary power of appointment given by an English instrument to an appointor domiciled abroad. The obvious principle here is that, just as in the case where a testator disposes of his own property, capacity must be tested by the law of the appointor’s domicile. There is indeed no doubt that, if the domiciliary law’s rule on the matter is satisfied, the appointment is good. It is enough, whether the power is general or special, that the appointor is of full capacity by the law of his own domicile, even though he is incapable by the law that governs the instrument by which the power was created, ie the will. For example, in Re Lewal’s Settlement Trusts,175 the wife had a general power of appointment under an English marriage settlement. She had originally been domiciled in England but on her marriage had acquired the French domicile of her husband. In her will, made when she was aged nineteen, she appointed her husband her “legataire universel”, and ten years later she died domiciled in France. Under English law, she had no capacity to exercise the power, being under twenty-one; under French law, she was capable of disposing of half the property she could have disposed of had she been twenty-one. The court applied French law176 to the issue of her capacity, with the result that half the property subject to the power went to her husband, and the other half went as in default of appointment.
But this does not conclude the matter. What of the converse case, ie where the appointor has capacity by the law governing the instrument by which the power was created, but not under the law of his domicile? The view taken by English law is that it is the instrument which creates the power, and not the one by which the power is exercised, which is the governing instrument, and that the appointor is a mere agent to carry out the wishes of the donor. The appointee takes under the instrument of creation, not under the will of the appointor. It follows, therefore, that an appointment is valid if the appointor has capacity by the law that governs the instrument of creation, though he may be incapable by the law of his own domicile. It may well be objected that even if the appointor is regarded as merely the agent of the donor he should not be free to do what, according to the law to which he is subject, he is incapable of doing. Nevertheless, to treat him as an agent is not unreasonable in the case of a special power, for here, as has been seen, his function is to select the beneficiaries from the class already designated by the donor. He is in no sense disposing of his own property. But there is little to justify a reference to the law governing the instrument of creation in the case of a general power, for the appointor in such a case can scarcely be regarded as a mere agent to implement the wishes of the donor.
The correct rule probably is, therefore, that the testamentary exercise of a general power is invalid for want of capacity unless the appointor is capable by the law of his domicile; but that in the case of a special power the exercise is valid if he is capable either by the law of his domicile or by the law that governs the instrument of creation.177
A power of appointment exercisable by will is frequently given by an English settlement or an English will to a person who ultimately dies domiciled in a foreign country or who makes (p. 1362) his will in a foreign country. In such circumstances it is essential to ascertain the legal system that determines whether the formalities attending the testamentary exercise of the power are sufficient. The Wills Act 1963 has extended and amended the previous law. The position now is as follows.
First, a will so far as it exercises a power of appointment is to be treated as properly executed if it complies with the requirements of any one of the legal systems specified in the Act.178 Thus the connecting factors now qualified to determine the governing law are the place of execution of the will or the nationality, domicile or habitual residence of the testator, or the law of the situs in the case of immovables.
Secondly, the will is to be treated as properly executed if its execution conforms to the law that governs the essential validity of the instrument creating the power.179 If the power is created by an English instrument, it will be validly executed if it conforms with English law;180 and if creation is by a foreign instrument, then there should be conformity with that foreign law.181
There is a further provision in the 1963 Act, resolving some tiresome problems in the law before 1964,182 that the testamentary exercise of a power of appointment is not formally invalid by reason only of a failure to observe a formality required by the instrument of creation.183
The determination of the law to govern the essential validity of a disposition resulting from the exercise of a power of appointment depends on whether the power is general or special. The effect of the appointment in the case of a special power is determined by the legal system to which the instrument that created the power is subject, for, since the appointor is merely the agent through whom the donor of the power designates the beneficiaries, the latter take under the instrument of creation.184 Thus, in Pouey v Hordern185 a domiciled Frenchwoman, who had a special power of appointment given by an English settlement, was held capable under English law of exercising it in a manner that was incompatible with the French doctrine of community.
In the case of general powers, the property given thereunder may be treated by the donee either as if it were his own, ie as a mass combined with his own, or quite separately therefrom. It is a question of construction as to how it is to be considered.186 In the first case, where the donee treats the settled property as his own, the Court of Appeal in Re Pryce187 held that the operation and effect of the donee’s appointment must be determined by the law that governs the will by which he exercises the power, ie by the law of his last domicile. Danckwerts J in Re Waite’s Settlement188 preferred to apply the law governing the instrument creating the power, rather than the law of the donee’s domicile, despite the fact that the case related to a References(p. 1363) general power where the funds were massed, but his decision was disapproved in Re Khan’s Settlement.189 In the latter case:
The testator, the Nawab of Bhopal, domiciled in India, made a settlement in which he reserved to himself a general power of appointment by will. This settlement was to be governed by English law, apart from a clause referring to his heirs under Indian law. His English will gave legacies to three of his seven heirs, in excess of the free estate under the will, and then executed the power of appointment in favour of all his heirs. Under Indian law, the domiciliary law, the consent of all heirs was necessary before payment of legacies to any heirs could be made, and this consent was refused. Thus, if Indian law governed, the legacies could not be paid out of the free estate or the settlement funds, whilst there was no such restriction under English law, the law governing the instrument of creation.
Russell LJ concluded that he was bound to follow Re Pryce190 rather than Re Waite’s Settlement.191 He decided that the free estate and the settled fund formed one mass, the distribution of which was to be governed by Indian law, and the legacies could not be paid. He thought “it a logical consequence of the grounds of those decisions in cases of blending or massing . . . that the settled funds are subjected to the whole succession law of the domicile of the appointor, including any restriction on testation”.192
If, in the case of a general power, the settled funds are not treated as having been taken out of the settlement and massed with the donee’s own funds, then, as in Re Mégret,193 the validity of the exercise of the power of appointment is governed, not by the law of the domicile of the donee, but by the law governing the instrument of creation, as in the case of special powers. This can be justified on the ground that in neither of these cases is the donee in reality disposing of his own funds.
All the cases discussed so far concern movable property. In the case of the essential validity of the exercise by will of a general power of appointment over immovables, there is clear authority that this should be governed by the law of the situs of the property.194
In accordance with the principle applicable to wills generally, the construction of a power of appointment is governed by the law intended by the testator (or appointor) which, in the case of movables, is presumed to be that of his domicile when the will was made.195 This appears to be true whether the power is special196 or general.197 If it appears that the testator intended a law other than that of his domicile at the time of making the will to apply, as in Re Price,198 then that other law governs the construction.
But the question has arisen whether the intention of the testator is decisive if it indicates a foreign law that has no knowledge of powers.
Suppose, for instance, that a testator, domiciled in France and having a general power of appointment by virtue of an English settlement, makes a valid will according to French law. The will does not refer in any way to the power but merely disposes of the property in general (p. 1364) words. A power to dispose of property not belonging to the donor (which is the true nature of a power of appointment) is unknown in French law.199 The will, therefore, if construed according to French law, can scarcely be said to constitute an execution of the power. Can English law be applied to the issue of construction?
After considerable judicial conflict this question has been answered in the affirmative.200 The French court, being ignorant of the peculiar power of disposition thus given by an English instrument, would have to turn to English law (with reference to which the testator obviously wrote) in order to ascertain the nature of the right and the manner in which it might be exercised.
A consequence of this conclusion is that section 27 of the Wills Act 1837 may apply to wills of persons who are domiciled other than in England. Under section 27 a general devise or bequest is construed as exercising a general power of appointment unless a contrary intention appears in the will. In the above example, the testator’s French will falls to be construed in accordance with section 27 as exercising a general power of appointment.201 Were the power merely special, it would not be held to be exercised under section 27.
A power of appointment over movables exercisable by will may be revoked under the law of the donee’s domicile.202 A power over movables or immovables will be revoked if it is revoked by a later will properly executed under the Wills Act 1963.203 Under section 2(1)(d) of the 1963 Act, a will so far as it exercises a power of appointment is validly executed if it complies with the law governing the essential validity of the power. This does not apply, however, to a will which merely revokes a power of appointment without providing another power in its place. Finally a power exercisable by will may be revoked by the subsequent marriage of the testator according to the law of his domicile at the time of his marriage, rather than of his death.204 Where, however, the testator is domiciled in England at the time of his marriage then, under section 18(2) of the Wills Act 1837,205 an exercise of a power of appointment by will takes effect, “notwithstanding the subsequent marriage unless the property so appointed would in default of appointment pass to his personal representatives”.
1 See Miller  Conv 30; (1990) 39 ICLQ 261; Scoles (1988) II Hague Recueil 9, 54–89; North (1990) I Hague Recueil 9, 273–82; Miller, International Aspects of Succession (2000); and Hayton, European Succession Laws (2002) 2nd edn.
2 For a fuller account of the opposing principles, see Wolff, p 567 et seq; Cohn (1956) 5 ICLQ 395. For criticism of the idea of scission, see Re Collens  Ch 505, 512–13. The Hague Conference on Private International Law concluded, in 1989, a Convention on the Law Applicable to Succession to the Estates of Deceased Persons. This Convention adopts the principle of unity of succession, applying the same rules to movables and immovables, and to testate and intestate succession. In most cases the law to be applied would be that of the deceased’s habitual residence at the time of death. The Convention is still not yet in force and has not been signed or ratified by the United Kingdom. For varied assessments of the Convention’s merits, see von Overbeck (1989) 46 Annuaire suisse de droit international 138; Lagarde (1989) 78 Rev crit dr int privé 249; North (1990) I Hague Recueil 9, 278–82; Schoenblum (1991) 32 Va J Int L 83.
7 A subsequent change in the law of the domicile is in general of no effect: Lynch v Provisional Government of Paraguay (1871) LR 2 P & D 268. See also Re Aganoor’s Trusts (1895) 64 LJ Ch 521; Morris v Davies  EWHC 1773 (Ch); but see the Wills Act 1963, s 6(3), infra, p 1342 et seq; cf succession to immovables where the relevant date is that of the proceedings: Nelson v Lord Bridport (1846) 8 Beav 547.
11 Until the Married Women’s Property Act 1882, a married woman could dispose by will of her separate estate or exercise a power of appointment, and she could bequeath personalty with the assent of her husband, but otherwise she had no testamentary capacity.
17 Supra. By German law the boy’s father was entitled as guardian to receive the legacy. Lord Romilly MR, however, refused to permit payment to him and ordered that during the minority the money should be treated as a minor’s legacy.
27 This is the test laid down by the Hague Convention on Conflict of Nationality Laws (1930). If, however, the testator is a national of the forum, it is generally agreed that that nationality prevails; see Rabel, Vol 1, p 120.
31 In the case of immovables it is also sufficient to comply with the law of the situs: s 2(1)(b), infra, p 1351. The Law Reform Committee of British Columbia, in its Report on the Making and Revocation of Wills (1981), recommended (p 107) that a will should also be formally valid if it complies with the law of the situs of movables either at the time the will was made or at the date of death.
39 S 6(3). If this extends to alterations in the law made after the death of the testator, it reverses the effect of Lynch v Provisional Government of Paraguay (1871) LR 2 P & D 268, supra, p 1339, n 7.
46 The Administration of Justice Act 1982, ss 23–26 (ss 23–25 not yet in force) also implements another international convention, namely the Council of Europe Convention on the Establishment of a Scheme of Registration of Wills (1972) which may also be of practical assistance to the person who makes a will away from home. It provides for the establishment of national registration schemes for wills and access to them from other Contracting States.
47 Thornton v Curling (1824) 8 Sim 310; Campbell v Beaufoy (1859) John 320; Macdonald v Macdonald (1872) LR 14 Eq 60; Re Groos, Groos v Groos  1 Ch 572; Philipson-Stow v IRC  AC 727 at 761; Re Levick’s Will Trusts  1 WLR 311; Re Barton (Deceased), Tod v Barton  EWHC 264 (Ch);  WTLR 469; Al-Bassam v Al-Bassam  EWCA Civ 857,  WTLR 757.
54 Re Priest  Ch 58. This case has been much discussed; see RMW (1944) 60 LQR 114; Morris (1945) 61 LQR 124; (1946) 62 LQR 172, 173; Kahn-Freund (1946) 7 MLR 238; Wolff, p 586. See now the Wills Act 1968.
56 See Re Ogilvie  1 Ch 492, 500; Re Mengel’s Will Trust  Ch 791; Dicey, Morris and Collins, paras 27R-075–27-077. Election is discussed more fully in the context of succession to immovables, infra, p 1355 et seq.
57 Pain v Holt (1919) 19 SRNSW 105; Re Herron  4 DLR 203; Re Terry  NZLR 30; Re Greenfield  2 NZLR 662. The English legislation is limited in terms to testators dying domiciled in England and Wales: Inheritance (Provision for Family and Dependants) Act 1975, s 1(1), as amended by the Civil Partnership Act 2004, Sch 4(2), para 15(6); and see Mastaka v Midland Bank Executor and Trustee Co Ltd  Ch 192; Wilson v Jones (Preliminary Issue), 8 June 2000 (unreported), Ch D; Cyganik v Agulian  EWCA Civ 129;  1 FCR 406.
60 Fordyce v Bridges (1848) 2 Ph 497, 515. An English testator gave the residue of his personal estate to trustees to convert it into money and lay it out in the purchase of land in England or Scotland according to the limitations of a Scottish entail. Such limitations infringed the English rule against perpetuities. The trustees were allowed to purchase land in Scotland in accordance with the terms of the will.
66 The majority decision of the Supreme Court of Canada to the contrary: Jewish National Fund Inc v Royal Trust Co (1965) 53 DLR (2d) 577, has been strongly criticised: Picarda, The Law and Practice Relating to Charities (1995) 2nd edn, pp 783–5; Waters, Law of Trusts in Canada (2005) 3rd edn, Chapter 14.
68 Oliphant v Hendrie (1784) 1 Bro CC 571; Mackintosh v Townsend (1809) 16 Ves 330; A-G v Mill (1827) 3 Russ 328, 338; affd by the House of Lords 2 Dow and Clark 393; Fordyce v Bridges (1848) 2 Ph 497, 515.
72 Re Fergusson’s Will  1 Ch 483. But see Re Goodman’s Trusts (1881) 17 Ch D 266; cf the Scottish view: Mitchell’s Trustee v Rule 1908 SLT 189; Smith’s Trustees v Macpherson 1926 SC 983; Anton, para 24.82-24.96.
76 Re Price, Tomlin v Latter  1 Ch 442. In Re Wynn  1 WLR 237, English law was applied to determine whether a will which revoked previous wills but made no fresh dispositions of the testatrix’s property (apparently both movable and immovable) could have the effect of excluding her husband from taking on intestacy, even though it was not decided where the testatrix was domiciled at the material time.
79 In the Estate of Wayland  2 All ER 1041; Guardian Trust and Executors Co of New Zealand Ltd v Darroch  2 NZLR 143. Also In the Estate of Vickers (2001-02) 4 ITELR 584; Re Baldry (Deceased)  WTLR 609 (Fam Div), in respect of which see Simm 2005 TEL & TJ (65) (Apr) 15; Lamothe v Lamothe  EWHC 1387;  WTLR 1431.
85 Wills Act 1837, s 18 (as substituted by the Administration of Justice Act 1982, s 18), and s 18A, as amended by the Law Reform (Succession) Act 1995, s 3 and the Family Law Act 1996, Sch 8). See also s 18B (will to be revoked by civil partnership) and s 18C (effect of dissolution or annulment of civil partnership on wills); Re Ikin (deceased)  EWHC 3340 (Ch).
88 Ibid, 240.
95 Balfour v Scott (1793) 6 Bro Parl Cas 550; Duncan v Lawson (1889) 41 Ch D 394; cf Re Ralston  VLR 689. When the immovables are situated in a country that adopts the principle of unity of succession this means that, subject to the acceptance of the renvoi doctrine by the law of the situs, the order of descent may be that of England; cf Re Duke of Wellington  Ch 506; supra, pp 68–9.
99 Morris and North, p 575. A clear negative answer has been given in Canada: Re Thom (1987) 40 DLR (4th) 184; Vak Estate v Dukelow (1994) 117 DLR (4th) 122; cf Train v Train’s Executor (1899) 2 F 146.
110 Note, however, in the USA, the gradual erosion of the situs rule for testate succession to immovable property: Saunders v Saunders 796 So 2d 1253 (Fla App 2001), cited in Symeonides (2002) 50 AJCL 1, 94.
111 Supra, Chapter 5.
120 1975 Act, s 1(1), as amended by the Civil Partnership Act 2004, Sch 4(2), para 15(6). See Wilson v Jones (Preliminary Issue), 8 June 2000 (unreported), Ch D; Cyganik v Agulian  EWCA Civ 129;  1 FCR 406.
130 Orrell v Orrell (1871) 6 Ch App 302; Dewar v Maitland (1866) LR 2 Eq 834; Re Ogilvie  1 Ch 492. This rule was overlooked by Cohen J in Re Allen’s Estate  2 All ER 264, as to which case see Re Mengel’s Will Trusts  Ch 791; Dicey, Morris and Collins, paras 27R-078–27-085; Morris (1945) 10 Conv (NS) 102; (1946) 24 Can Bar Rev 528.
131 There is a conflict of authority in the USA in the case of immovables as to whether the law of the domicile or the law of the situs applies: Leflar, p 557. The Restatement 2d, § 242 supports the law of the situs. In the case of movables, whilst the predominant view is that expressed in the Restatement 2d, § 265 that the law of the domicile applies, this conclusion has been justified by reference to a balancing of the predominant interests of the jurisdictions involved: Re Clark’s Estate 21 NY 2d 478, 236 NE 2d 152 (1968); Re Mulhern’s Estate 297 NYS 2d 485 (1969).
132 The present account of election is confined to a case where movables are bequeathed to the owner of the foreign land, and in such a case the law of the domicile governs. If English land is left to the foreign heir and foreign land left away from the heir, then English law as that of the situs governs, irrespective of domicile.
143 Cf the decision in Brown v Gregson  AC 860, where it was held that a foreign heir will not be put to his election if it would be impossible by the law of the situs to give effect to the disposition of the foreign land intended by the testator.
145 Supra, p 1352 et seq; see also In the Estate of Vickers (2001-02) 4 ITELR 584; Re Baldry (Deceased)  WTLR 609 (Fam Div), in respect of which see Simm 2005 TEL & TJ (65) (Apr) 15; Lamothe v Lamothe  EWHC 1387;  WTLR 1431.
155 See generally supra, Chapter 1; Crawford and Carruthers  Jur Rev 251.
157 COM (2005) 65 final. See also Commission Staff Working Paper, Annex to the Green Paper on Succession and Wills (SEC (2005) 270); Opinion of the European Economic and Social Committee on the Green Paper on Succession and Wills (OJ 2006 C 28); and European Parliament Report with Recommendations to the Commission (A6-0359/2006).
158 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession OJ L 201/107.
169 For further analysis of the Succession Regulation see, for example, E Crawford and J Carruthers, “Speculation on the Operation of the Succession Regulation 650/2012: Tales of the Unexpected” (2014) 22 European Review of Private Law 847.
200 Re Simpson  1 Ch 502; Re Wilkinson’s Settlement  1 Ch 620; Re Lewal’s Settlement  2 Ch 391; Re Waite’s Settlement  Ch 100; Re Fenston’s Settlement  3 All ER 1092. Decisions to the contrary are Re D’Este’s Settlement Trusts  1 Ch 898; Re Scholefield  2 Ch 408.