Will (law): international legal history
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- Material below is adapted from an article in the 1911 Britannica. In many jurisdictions, laws regarding wills have changed substantially since 1911. Some of this material has been replaced by newer material, and some more of it should. Some of the older material is also still being copy-edited.
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[edit] United States
In the 21st century, eighteen is the typical age of testamentary capacity. Full liberty of disposition is not universal. In particular, many states normally grant spouses the right to at least half the estate regardless of what the will says (or if no will can be found). Some require that children cannot be disinherited without good cause. In many case, children omitted in a will may still take their share. Louisiana followed French law, by which the testator can under no circumstances alienate by will more than half his property if he leave issue or ascendants. In 1911, the husband's consent was sometimes required for a married woman's will to be valid, but this is no longer the case. Nuncupative and holograph wills are valid in some states, but are forbidden in others. The former are confined to personality and must generally be reduced to writing within a short time after the words are spoken. In Louisiana the mystic or sealed will still existed in 1911. The number of witnesses necessary for the validity of a will of any kind is usually two, but Vermont requires three. To be valid, witnesses must not be heirs under the will. In 1911, wills of soldiers and sailors were privileged, as in England.
[edit] France (as of 1911)
The law is mainly contained in ss. 967–1074 of the Code Napoleon. Wills in France may be of three kinds:
- holograph, which must be wholly written, dated and signed by the testator;
- made as a public instrument, i.e. received by two notaries before two witnesses or by one notary before four witnesses; this form of will must be dictated by the testator and written by the notary, must be read over to the testator in the presence of the witnesses and must be signed by testator and witnesses;
- mystic, which are signed by the testator, then closed and sealed and delivered by him to a notary before six witnesses; the notary then draws up an account of the proceedings on the instrument which is signed by the testator, notary and witnesses.
Legatees and their blood relations to the fourth degree may not be witnesses. Nuncupative wills are not recognized. Soldiers' and sailors' wills are subject to special rules as in most other countries. Full liberty of disposition only exists where the testator has no ascendants or descendants, in other cases his quantile disponible is subject to reserve; if the testator has one child he may only dispose of half his estate, if two only one-third, if three or more only one-fourth; if he has no descendants but ascendants in both lines he may dispose of half, if ascendants in one line only he may dispose of three-fourths. The full age of testamentary capacity is twenty-one years, but minors over the age of sixteen may dispose by will of half of the estate of which they could dispose had they been of full age. There is no restriction against married women making wills. A contract to dispose of the succession is invalid, s. 791.
The civil codes of southern Continental Europe are in general accordance with the French law.
[edit] Germany (as of 1911)
Most of the law will be found in the Bürgerliches Gesetzbuch, ss. 2064–2273. A holograph will, either single or joint, is allowed. Other wills must be declared before a judge or notary or (outside Germany) a consul. Two witnesses are required, unless the witness be a notary or the registrar of the court, who is sufficient alone. The formalities may be relaxed in certain cases, such as imminent death, a state of siege, a prevailing epidemic, etc. Descendants, ascendants and the husband and wife, are entitled to compulsory portions (pflicht-teilsberechtigt). But those prima facie entitled may be deprived of their share for certain specified kinds of misconduct. A contract to make any specified testamentary disposition is inoperative. But a contract of inheritance (Erbvertrag) made inter mvos by direct disposition is valid in certain cases and will operate on the death of the contractor. The modes of revocation are much the same as in England (except marriage). But there is one peculiar to Germany, the inconsistency of a will with an Erbvertrag; in such an event the will is wholly or pro tanto revoked.
[edit] International Law
There are three main directions which the opinion of jurists and the practice of courts have taken, as of 1911:
- The whole property of the testator may be subjected to the law of his domicil. To this effect is the opinion of Savigny and the German practice. Certain modifications have been made by modern law, especially by the Einführungsgesetz of 1896.
- The property may be subjected to the law of the place where it happens to be at the time of the testator's death.
- The movable property may be subjected to the law of the domicil. The immovable (including leaseholds) to the law of the place where it is situated, the lex loci rei sitae. England and the United States follow this rule.
Testamentary capacity is generally governed by the law of the testator's domicil at the time of his death, the form of the instrument in most countries either by the law of his domicil or the law of the place where the will was made, at his option. The old rule of English law was to allow the former alternative only. The law was altered for the United Kingdom in 1861 by the Wills Act 1861 (known as Lord Kingsdown's Act), by which a will made out of the United Kingdom by a British subject is, as far as regards personal estate, good if made according to the forms required by the law of the place where it was made, or by the law of the testator's domicil at the time of making it, or by the law of the place of his domicil of origin. Subsequent change of domicile does not avoid such a will. Another act passed on the same day, the Domicile Act 1861, enacted that by convention with any foreign government foreign domicil with regard to wills could not be acquired by a testator without a year's residence and a written declaration of intention to become domiciled. By the same act foreign consuls may by convention have certain authority over the wills and property of subjects of foreign states dying in England.
In the United States some states have adopted the narrow policy of enacting by statute the old common law rule, and providing that no will is valid unless made in the form required by the law of the state of the testator's domicile. The capacity of the testator, revocation and construction of a will, are governed by the law of the domicile of the testator at the time of his death-except in cases affected by Lord Kingsdown's Act, as he must be supposed to have used language in consonance with that law, unless indeed he express himself in technical language of another country. A good instance is Groos' Case (1904), Prob. 269, where it was held that the will of a Dutch woman (at the time of her death domiciled in England) duly made in Holland was not revoked by her marriage, that being no ground of revocation by the law of Holland.
The persons who are to take under a will are decided by different rules according as the property is movable or immovable, the former being governed by the law of the domicile, the latter by the Lex loci rei sitae. It was held, however, in 1881 by the court of appeal in England that, under the will of an Englishman domiciled in Holland, leaving personal property to children, children legitimated per subsegitens matrimonium could take, as they were legitimate by the law of Holland, though not by the law of England (re Goodman's Trusts, 17 Ch. D. 266). This principle was carried further in re Grey's Trusts (1892), 3 Ch. 88, where it was held that a legitimated child was entitled to share in a devise of English realty. But it is to be noted that a person born out of lawful wedlock, though legitimated, could not succeed as heir to real estate in England as of 1911 (Birtwhistle v. Vardill, 2 Cl. and F. 895). A will duly executed abroad is generally required to be clothed with the authority of a court of the country where any property affected by the will is situate.
