Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/609

Rh WILL 573 Tnvalida- A will may be void, in whole or in part, for many reasons, which tion of may be divided into two great classes, those arising from external wills. circumstances and those arising from the will itself. The main examples of the former class are revocation by burning, tearing, &c. , by a later will, or by marriage of the testator, incapacity of the testator from insanity, infancy, or legal disability (such as being a convict), undue influence, and fraud, any one of which is ground for the court to refuse or revoke probate of a will good on the face of it, or declare a will of lands void. Undue influence is a ground upon which frequent attempts are made to set aside wills. Its nature is well explained in a judgment of Lord Penzance s : &quot; Pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without con vincing the judgment, is a species of restraint under which no valid will can be made.&quot; 1 The circumstances appearing on the face of the will which make it open to objection may either avoid it altogether or create a partial intestacy, the will remaining good as a whole. Where the will is not duly executed, e.g., if it is a forgery or if it is not signed by the testator or the proper number of witnesses, the will is not admitted to probate at all. Where it contains devises or bequests bad in law, as in general restraint of marriage, or tending to create perpetuities, or contrary to public policy, or to some particular enactment, only the illegal part is void. A remarkable instance is a well-known case in which a con dition subsequent in a devise was held void as against public policy, being a gift over of the estate devised in case the first devisee, the eldest son of an earl, did not before his death obtain the lapsed title of duke of Bridgewater. 2 Wills of There are some wills of an exceptional kind which demand special excep- notice. King. It was resolved in parliament in the 16th Ric. II. tional that the king, his heirs and successors, might lawfully make their character, testaments. 3 In some later cases parliamentary authority has been given to royal wills, in others not. The executors of Henry IV. were confirmed in their office by letters patent of Henry V., those of Henry V. by parliament. The largest testamentary powers ever conferred on an English king were given to Henry VIII. by 25 Hen. VIII. c. 7, empowering him to limit and appoint the succes sion to the crown by will, in default of children by Jane Seymour or any future wife. By 39 and 40 Geo. III. c. 88 the king and his successor may devise or bequeath their private property. No court, however, has jurisdiction to grant probate of the will of a king. Guardianship. As a general rule wills deal with property, but even at common law a will simply appointing a guardian was good. The common law was superseded by 12 Car. II. c. 24, under which a father may dispose of the custody of his unmarried infant children by will. The Guardianship of Infants Act, 1886, extended such powers in certain cases to the mother. Married Woman. At common law a married woman could not (with a few exceptions) make a will without her husband s licence and consent, and this disability was specially preserved by the Wills Acts of Henry VIII. and of 1837. A common mode of avoiding this difficulty was for the husband to contract before marriage to permit the wife to make an appointment disposing of personalty to a certain value. Courts of equity from an early time allowed her, under certain restrictions, to make a will of property held for her separate use. In some cases her husband could dispose of her property by will, in others not. The law as it existed previously to 1882 is now practically obsolete, the Married Women s Property Act of that year enabling a married woman to dispose by will of any real or personal property as her separate property as a feme sole without the intervention of any trustee. The Act also enables a married woman who is execu trix of a will to act as if she were a feme sole. Alien. Before 1870 an alien enemy resident in England could only dispose of property by will with the king s licence. The Naturalization Act, 1870, enables him to do so as fully as a natural-born British sub ject. Soldier and Sailor. Wills of soldiers in actual military service, and of sailors, are subject to special legislation, and are excepted from the operation of the Wills Act. The privilege only applies to wills of personal estate. Wills of soldiers on an expedi tion may be made by unattested writing or by nuncupative testa ment before two witnesses. Wills of petty officers and seamen in the navy, and of marines, as far as relates to their pay or prize- money, must be attested by an officer, and wills made by a seaman in the merchant service must, if made at sea, be attested by the master or mate, if made on land by a superintendent of a mercantile marine office, a clergyman, justice of the peace, or consular or customs officer. The wills of prisoners of war are subject to special regulations, and the Admiralty may at its discretion waive the due execution of wills in other instances. The effects of seamen, marines, and soldiers, killed or dying in the service, are exempt from probate duty. Pay, wages, prize money, and pensions due to persons employed in the navy may be paid out without probate where, the whole assets do not exceed 32. The Board of Trade l Hull v. Hall, Law Rep., 1 Probate, 481. - Egerton v. Eaii Brownlow, 4 House of Lords Canes, 210. 3 4 /n.rt.,335. See the Collection of Royal Wills printed for the Society of Antiquaries 1&amp;gt;y . Xicliols (17SO). may at its discretion dispense with probate of the will of a merchant seaman whose effects do not exceed 50 in value. By an Act passed in 1868 the existing exemptions are extended to the sum of 100 in the case of civil service pay or annuities, of civil or military allowances chargeable to the army votes, and of army prize money. Will made under power. A will made under a power of appoint ment is not revoked by marriage when the real or personal estate thereby appointed would not in default of appointment pass to the testator s executor or administrator or to the next of kin. Before the Wills Act a will exercising a power of appointment had to conform to any special requisitions in the power, but since the Act the power is duly exercised if executed and attested like an ordinary will. Registration. In the register counties memorials of wills affecting lands in those counties must be registered (see REGIS TRATION). At common law there could be no larceny of a will of lands. Criminal But now by the Larceny Act of 1861 stealing, injuring, or conceal- law re- ing a will, whether of real or personal estate, is punishable with lating to penal servitude for life. Forgery of a will (at one time a capital wills, crime) renders the offender liable to the same penalty. Fraudulent concealment of a will material to the title by a vendor or mortgagor of land or chattels is by 22 and 23 Viet. c. 35 a misdemeanour punishable by fine or imprisonment or both. Connected with the subject of tliis article, though not falling Donatio directly under it, is the donatio mortis causa, depending for the mortis most part upon rules adopted from Roman law. Unlike a bequest causa. under a will, such a gift passes without probate and does not need the presence of any statutory number of witnesses. It is, however, liable to legacy duty and is part of the assets of the deceased. For its validity two elements are essential : the gift must be conditional on the donor s dying from his existing illness, and therefore revoc able, and there must be delivery. Money, jewels, or other chattels may be the subjects of a donatio mortis causa ; so may negotiable instruments passing by delivery, but not cheques signed by the giver, as his authority to draw is revoked by his death. If pre sented before his death, the gift, being unconditional, is wanting in one of the elements of a good donatio mortis causa. 1 Ireland. The Act of 1837 applies to Ireland. In 1857 an Act Ireland, on lines similar to the English Act was passed for Ireland, 21 and 22 Viet. c. 79. Under the Irish Judicature Act of 1877 the then existing Court of Probate was merged in the High Court of Justice. Scotland. Up to 1868 wills of immovables were not allowed in Scotlam: Scotland. The usual means of obtaining disposition of heritage after death was a trust disposition and settlement by deed deprse- senti, under which the truster disponed the property to trustees according to the trusts of the settlement, reserving a life interest. Thus something very similar to a testamentary disposition was secured by means resembling those employed in England before the Wills Act of Henry VIII. The main disadvantage of the trust disposition was that it was liable to be overthrown by the heir, who could reduce ex capite lecti all voluntary deeds made to hi.s prejudice within sixty days of the death of his ancestor. In 1868 the Titles to Land Consolidation Act made it competent to any owner of lands to settle the succession to the same in the event of death by testamentary or mortis causa deeds or writings. In 1871 reduction ex capite lecti was abolished by 34 and 35 Viet. c. 81. A will of immovables must be executed with the formalities of a deed and registered to give title (see REGISTRATION). The disability of a woman as a witness was removed by the Titles to Land Con solidation Act. As to wills of movables, there are several import ant points in which they differ from corresponding wills in Eng land, the influence of Roman law being more marked. Males may make a will at fourteen, females at twelve. A nuncupative legacy- is good to the amount of 100 Scots (8, 6s. 8d.), and a holograph testament is good without witnesses, but it must be signed by the testator, differing in this from the old English holograph. By the Conveyancing Act, 1874, such a will is presumed to have been exe cuted on the date which it bears. Not all movables can be left, as in England. The movable property of the deceased is subject to jus relictse, or widow s right to half if there be no child or children, one-third if there be a child or children, and the legitim, or bairn s part, of half if there be no widow, one-third if there be a widow. Only the remainder is disponible as dead s part. Legitim depends upon survivance and is not transmissible on predecease of a person prospectively entitled to it. Both jus relicte and legitim may be excluded by discharge or satisfaction, as by provision in the contract of marriage. Executor in Scotch law is a more extensive term than in English. He is either nominate or dative, the latter appointed by the court and corresponding in most respects to the English administrator. Caution is required from the latter, but not from the former. Confirmation includes both the probate and letters of administration of English procedure. Without confirma tion by the court interference by the executor becomes a vitious 1 The principal authorities for the English law are, for the formalities, Williams, Kreciitors ; for the construction, the works of Sir James Wigram and of Messrs Jarnian, F. V. Hawkins, and Theobald. Precedents will lie found In Hayes and Jarrnan s Concise Forms of ll ills and in ordinary collections of precedents in conveyancing.