Comment and Illustrations.

This Exception is (except the figures and words in square brackets) given in the precise terms of the Wills Act, 1861 (24 & 25 Vict. cap. 114), s. 1; the words "if any," suggested by In Goods of Lacroix,1 are added for the sake of clearness.

It will, however, be observed that part of the Exception 2 refers to cases in which there may have been a change of domicil between the execution of the will and the death of the testator, and therefore are not, strictly speaking, within an Exception to Rule 182. The effect of the terms referring to a change of domicil is considered in the comment upon Rule 184.

A will to come within this Exception must be, first, a will "made out of the United Kingdom; "3 secondly, a will "made by a British subject," who may be either a natural-born or a naturalized British subject; thirdly, a will of "personal estate." The term "personal estate," as already pointed out," is not synonymous with "movables;" for, though personal estate includes (with insignificant exceptions) all movables, it also, when used with technical correctness, includes interests in land, which belong to the class of immovables. What is the sense in which the term is used in the Wills Act, 1861,6 and therefore in Exceptions 17 and 2,8 is open to question. Probably, however, "personal estate" is to be understood in the Act, and therefore in the Exceptions, as equivalent to movables, and as not including interests in land.9

When the above three conditions are fulfilled, a will (though not executed according to the form required by the law of the testator's domicil at the time of his death) will be held to be "well executed for the purpose of being admitted to probate (i. e., will be held formally valid), if executed according to any of the forms specified in the Exception.

The following examples illustrate the effect of the Exception as

1 1877, 2 P. D. 94.

2 Viz., the words in the parenthesis and clause 2.

3 For meaning of "United Kingdom," see p. 65, ante.

In Goods of Gally, 1876, 1 P. D. 438.

5 See pp. 72, 73, ante.

624 & 25 Vict. cap. 114.

7 See p. 690, ante.

8 See p. 693, post.

This conclusion is by no means certain, but is suggested by the general

scope of the Act.

regards wills of British subjects where there has been no change of domicil since the execution of the will:

A British subject domiciled in England goes for a few hours to Boulogne. Whilst there he executes a will of all his movable property, in accordance with the forms required by the law of France. The will, though not conforming to the Wills Act, 1837, 7 Will. IV. & 1 Vict. cap. 26, is valid.

A British subject domiciled in Germany is a native of the Mauritius, where he has his domicil of origin. Whilst travelling in Denmark, he makes a will of all his movable property, according to the form required by the law of the Mauritius. The will is valid here, even though not made in accordance with the forms required either by the law of the testator's domicil (Germany) or by the law of the country (Denmark) where the will is made.

As the Wills Act, 1861, 24 & 25 Vict. cap. 114, does not invalidate1 a will made in any form which would be valid independently of the Act, a British subject can still make a valid will of movables by following the form required by the law of his actual domicil. Hence it may happen that a British subject possibly has, when residing out of the United Kingdom, a choice of three different forms, according to any one of which he may make a will of movables which will be held, as far as form goes, valid in England. Thus, a British subject born of Canadian parents has a Canadian domicil of origin, and is actually domiciled in Germany. At the moment of making his will he is travelling in Italy. He may make a valid will of movables in any one of three different forms, viz., the German form (lex domicilii), the Italian form (lex actus), the Canadian form (lex domicilii originis).

If, however, the testator is a naturalized British subject, his will, if made only in accordance with the form required by the law of the place where he has his domicil of origin, may very well turn out to be invalid. The testator, for example, is a Frenchman whose domicil of origin is French. He becomes a British subject by naturalization. He is domiciled in Massachusetts, and is resident at Berlin, where he makes his will in accordance with the forms required by the law of the place where he has his domicil of origin, viz., France, but not in accordance with the forms required by the

1 "Nothing in this Act contained shall invalidate any will or other testamentary instrument, as regards personal estate, which would have been valid "if this Act had not been passed, except as such will or other testamentary "instrument may be revoked or altered by any subsequent will or testa"mentary instrument made valid by this Act." The Wills Act, 1861, s. 4.

law of Prussia. The will is invalid. It is not made according to the forms required by the law of the country where the testator is domiciled, viz., Massachusetts. It is not made according to forms required by the law of the place where it is made, viz., Prussia. It is made according to the forms required by the law of the place where the testator has his domicil of origin, viz. France, but this place is not "part of Her Majesty's dominions."

If, indeed, the law of Massachusetts held such a will valid when made by a British subject, it might be good as being made in accordance with the testator's lex domicilii; but it may pretty confidently be assumed that the Courts of Massachusetts would not hold the will valid, and that, therefore, it would neither under Rule 181,2 nor within Exception 1, be held valid in England.

Exception 2.3-Every will and other testamentary instrument made within the United Kingdom by any British subject (whatever may be the domicil 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, 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.

Comment.

This Exception reproduces verbatim the Wills Act, 1861 (24 & 25 Vict. cap. 114), s. 2. It will be noted that the words in parenthesis refer to cases where there may have been a change of domicil between the execution of the will and the death of the testator, and therefore are not strictly speaking within an Exception to Rule 182. The effect of the terms referring to a change of domicil is considered in the comment upon Rule 184.

4

A will within this Exception must be: first, a will “made within the United Kingdom;" secondly, the will of a "British subject;" thirdly, a will of "personal estate." If these conditions are satisfied, a will (though not duly executed according to the law of the testator's domicil) will be held to be well executed,

1 See In Goods of Lacroix, 1887, 2 P. D. 94, where a will made by a Frenchman, naturalized in England but domiciled in France, was, though made in the English form, held valid on the ground that the French Courts held such a will good in the case of a British subject.

2 See p. 684, ante.

24 & 25 Vict. cap. 114, s. 2. See App., Note 15, The Wills Act, 1861; note that "United Kingdom" does not include the Isle of Man or the Channel Islands; see p. 65, ante.

* See p. 691, ante.

.

and will be admitted to probate (i. e., will be held formally valid), if 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." Thus, a British subject may, when within the United Kingdom, make a will of movables which is to be held duly executed if he makes it either according to the form required by the law of the country where he is domiciled, e. g., Mauritius, or according to the form required by the law of the country where the will is made, e. g., Scotland.

A will, it should be noticed, which falls within either Exception 1 or Exception 2, though it must be held by an English Court to be duly executed, or free from any formal defect, may still, as before the Act of 1861, be invalid, either because the testator is, according to the law of his domicil, incapable 1 of making a will, or because the will is materially invalid or inoperative as containing provisions contravening the law of the testator's domicil.

SUB-RULE. The law of a deceased person's domicil at the time of his death, in general, determines whether, as to his movables, he does or does not die intestate.

Comment.

This Sub-Rule is an immediate result of the principle that the validity of a will2 is in general determined by the law of a testator's domicil. A French subject dies domiciled in England, leaving an unattested testamentary document, written wholly in his own hand and signed by himself. At the moment of executing it he is resident in Paris; he leaves no other will. Our Courts will decide, looking wholly to ordinary English law, that the document is not a will, i. e., that the deceased has died intestate. If, on the other hand, the testator had died in England but domiciled in France, and the document had been executed in England, our Courts would, in deciding whether it constituted a will or not, have looked wholly to French law. In either case, therefore, whether the testator does or does not leave a valid will, or in other words, whether he does or does not die intestate, is determined by our Courts in accordance with the law of the deceased's domicil.

The effect, however, of Exceptions 1 & 2 to Rule 182,3 and of

1 See Rule 182, p. 686, ante.

2 See Rule 181, p. 684, ante, and Rule 182, p. 686, ante, and compare Rule 180, p. 682, ante.

3 See pp. 690, 693, ante.

Rule 184,1 or, in other words, of the Wills Act, 1861, 24 & 25 Vict. cap. 114, occasionally is, that wills are held valid by our Courts though not made in accordance with the testator's lex domicilii, or, in other words, that a deceased person is held by English Courts to have died testate who, according to the law of his domicil at the time of his death, has died intestate.

(iii) Interpretation of Will.

RULE 183.- Subject to the exception hereinafter mentioned, a will of movables is (in general) to be interpreted with reference to the law of the testator's domicil at the time when the will is made.

Comment.

This Rule bears upon two different cases:

First. Where the testator uses technical terms of law, which have a definite meaning attached to them by the law of his domicil, his will must be interpreted with reference to such law.

Secondly. Where he has used terms the meaning of which is not governed by a rule of law, such as names of measures, weights, money, etc., it is reasonable to presume,2 in the absence of ground to the contrary, that he meant the measures, weights, etc., known by these names in the country where he was domiciled.

Except, however, in the cases in which the construction of a will is governed by an absolute rule of law, the maxim, that the terms of a will should be construed with reference to the law of the testator's domicil, is a mere canon of interpretation, which should not be adhered to when there is any reason, from the nature of the will, or otherwise, to suppose that the testator wrote it with reference to the law of some other country.

Exception.

Where a will is expressed in the technical terms of the law of a country where the testator is not domiciled, the will should be construed with reference to the law of that country.

Comment.

There are at least two different cases to which the principle of this Exception applies: 3

1 See p. 696, post.

2 See Intro., General Principle No. VI., p. 57, ante.

8 Compare 1 McLaren, Law of Wills and Succession, ss. 63–70.