Wills Made in Scotland - In Two Countries - The Legal Position of a Convict's Wife - Testatrix Under a Protection Order - English and Canadian Wills - Conditional Wills - Wills Made Before

Going Abroad or on a Journey

Scotchman whose domicil was in Scot-a land made a will, and afterwards married in Scotland. He subsequently left Scotland and came to reside permanently in England, thus acquiring an English domicil, and he died in this country.

Now, as already pointed out, marriage revokes a will according to the English law; but, according to the law of Scotland, the deed of settlement which he made, and which was to operate as his will, was not revoked by marriage. The only question then to consider was the will revoked by his change of domicil, and the Court held that under Lord Kingsdown's Act it was not, and that the Scotch will was entitled to probate.

An Englishman resident in Scotland bequeathed his whole means and estate to a trustee to pay certain pecuniary legacies, and all the rest of his means and estate to be divided equally among certain of his godchildren. According to the law of Scotland the will was a good one, but according to English law it was not properly executed.

He was possessed of leasehold property in England, and it was held that by virtue of the statue quoted above the English leaseholds passed under the will, the result being that the beneficiaries received their legacies.

Probate In Two Countries

A will made in Queensland, and attested by witnesses resident there, was proved and lodged in the Supreme Court of New South Wales at Sydney. The executor, however, applied for probate in Ireland, probably because the will dealt with property in that country; and, upon the evidence of one of the witnesses of the due execution of the will, and upon an affidavit of a solicitor and officer of the court at Sydney that they had inspected the will there and had set out a true copy of it in the affidavit, and proving the handwriting of the signatories (there being no suspicious circumstances attached to the will), it was held that probate should be granted in Ireland, on the assumption that Queensland was outside the jurisdiction of the courts of New South Wales. As to whether it was or whether it was not, there was no evidence before the Irish courts.

Cape Of Good Hope

A married woman and her husband had their domicil at the Cape of Good Hope, and, in accordance with the laws of that colony, previous to their marriage executed a deed of non-community of property, the effect of which was to exclude the husband from all interest whatever in the property of his wife which she then had or should afterwards acquire, and the deed was duly registered.

The wife died without making a will, and the English courts granted letters of administration to her brother, passing over and excluding her husband, who was still alive.

A wife of a convicted felon is a feme sole, or in the position of an unmarried woman as to her testamentary capacity, and a will made by her whilst her husband is undergoing his sentence is entitled to probate. This is quite apart from any powers which she may have acquired by means of the Married Women's Property Acts. In the leading case, which establishes this question beyond any doubt, the husband had been convicted and transported for an attempt to murder.

Under Protection Orders

A wife having been deserted by her husband, obtained a protection order by reason of his desertion. On her death, in the life of her husband, intestate, the Court decreed letters of administration, limited to such personal property as she had become possessed of since the desertion, without specifying of what that property consisted, to be granted to one of her next-of-kin.

A woman was deserted by her husband in 1843, and subsequently acquired property by her own industry. In 1851 she made a will disposing of her property, but did not obtain a protection order until 1858. The order, however, stated that it was "to protect all earnings and property acquired since July 22, 1843, the commencement of the desertion," and the will was held entitled to probate.

Ireland And Italy

A testatrix in Ireland made a will which she declared to be her last will, revoking all previous wills and appointing a residuary legatee and an executor.

Ten days later she made another will, which commenced, "I declare this to be my last will," appointing another executor and bequeathing part of her property in legacies. The Court held that the latter will did not revoke the former, and both were admitted to probate.

A testatrix made two wills, one relating to her property in England only, and one the following year disposing of her property in Italy only, but it contained a clause confirming the English will. The executors of the two wills were different. Held, on an application by the executors of the English will, that the Italian will must be included in the grant of probate.

England And Belgium

A testator, having an English domicil of origin, died in Belgium possessed of property in England and in Belgium. He left two wills, one in the English form, disposing of his English property, and the other in the Belgian form, disposing of his estate in Belgium.

The Court, on the renunciation of the Belgian executor, and on an affidavit that according to the law of Belgium the Belgian will only applied to the property in that country granted probate of both wills as together constituting the last will of the deceased, to the English executor.

English And Canadian Will

Where a testator had duly executed two wills, by one of which he purported to dispose of his Canadian property only, and by the other to dispose of his English property only, and appointed different executors for each will, the Court granted probate of the English will only, without requiring the executor to bring in the Canadian will, on an affidavit being filed in the registry exhibiting a copy of it, and a statement being made in the probate that this had been done. It was further ordered that a preliminary affidavit be filed showing that all the movables mentioned in the Canadian will were in Canada; and all the movables mentioned in the English will in England.

Codicils And Copies Of Wills

Each codicil must be signed and witnessed by two witnesses. The codicil is considered a part of the will, and a will and codicil are to be taken together as one act.

Where a testatrix wrote the separate lists of legacies on three separate sheets of paper, the first of which was headed, "Codicil to the will of S. P.," and signed all three sheets in the presence of witnesses, who only attested their signatures to the first sheet, the Court refused to grant probate to the two lists which were unattested.

A woman signed her will below the signatures of the witnesses, but before they signed, she should, of course, have signed her will at the foot of it, and the witnesses' signatures should have been written under hers. She afterwards executed a codicil, but signed it after the witnesses who attested it. The result was that the will was admitted to probate, but the codicil was rejected.

A testator made his will in India, and deposited it with a bank at Calcutta. Afterwards, while staying in Scotland, he executed a codicil in which he referred in distinct terms to a copy of the will. This copy he produced to the witnesses at the time he executed the codicil, and he deposited both papers in the hands of his executor.

The Court held that the copy was incorporated by the codicil, and probate of the copy, will, and codicil was granted without the production of the original will.

Conditional Will

An officer in the Army, whilst on active service during the Maori War, wrote a letter to his sister, containing the following: "If we remain here . . . the chances are in favour of more of us being killed, and as I may not have another opportunity of saying what I wish to be done with any little money I may possess, in case of an accident I wish to make everything I possess over to you. Keep this until I ask you for it."

But though he lived for thirty-two years after writing this letter, he never asked his sister for it, and never made any other will.

It was held that the terms of the letter did not limit its operation to the period of the Maori War or the period of the testator's active service, that the document was not conditional on his death at any particular time, and that it was a good military will, and must be admitted to probate.