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[21 Hen. VIII. (1529) c. 5, enlarged the power of the ecclesiastical judge, and permitted bim to grant administration, either to the widow, or to the next of kin, or to both of them, at his own discretion ; and, where two or more persons were in the same degree of kindred, gave the ordinary his election to accept whichever he pleased.]
Upon this footing stood the law of wills and of administrations, from at least as early as the commencement of the twelfth century, down to the year 1857, although in almost all other countries, these matters had come to be under the jurisdiction of the civil magistrates (y). But, in our own times, the opinion gradually obtained, that the subjects in question were not handled by the ecclesiastical courts as effectively, expeditiously, and cheaply as the interests of justice required ; which opinion at length led to the introduction, by Act of Parliament, of a new system, whereby the jurisdiction which these courts had during some centuries enjoyed over wills and intestacies was wholly taken away. We are referring, of course, to the Court of Probate Act, 1957 (2), whereby, as amended by the 21 & 22 Vict. (1858) c. 95, and (for domiciled Scotchmen having pure personal estate in England) by the Confirmation of Executors (Scotland) Act, 1858, and the 22 Vict. (1859) c. 30, the jurisdiction in the matter of wills and intestacies (so far as concerned personal estate) was directed to be thenceforth exercised in the “ Court of Probate," a new tribunal then created, of a secular character. And this jurisdiction was afterwards assigned to the Probate Division of the High Court of Justice by the Judicature Act, 1873 (a).
II. We shall now consider the manner and requisites of wills, regarded as dispositions of personal estate ; and under this head we propose to consider these four matters, namely,-(1) the capacity to be a testator ; (2) the
(a) 36 & 37 Vict. c. 66, ss. 3, 34.
(y) 3 Bl. Com. 95, 97.
solemnities required for the will ; (3) the appointment of the executor ; and (4) the probate of the will.
1. The capacity of persons to be testators.-As a rule, all persons are capable of being testators, save, of course, persons who labour under unsoundness of mind (whether total or partial) (6), or who by duress are restrained of their freedom of will, or who (as in the case of infants) are yet of immature will. As regards married women, they were (as a general rule) incompetent to make a will, and that purely by reason of their coverture ; in which particular, our constitution differed materially from the civil law, according to which a married woman was fully competent to make a will (c). But with us it was otherwise ; inasmuch as a married woman's personal chattels belonged in general to her husband, who might have disposed of them and also of her chattels real ; so that the law could not consistently give her also a power of disposing of them, by will or otherwise, to another (d). Yet by her husband's licence or with his assent, she might have disposed of her personalty by will (e),--he assenting to the particular will (f),—whereby he waived his own general right of administering to his wife's effects. So that, unless he survived her, in which case only he would be her administrator, his assent was not sufficient (g).
But this rule as to the incapacity of married women was subject to exceptions. And first, the queen consort might dispose of her chattels by will, even without the consent of the king (h). Secondly, any married woman might make her will of goods which were in her possession in auter droit, as executrix or administratrix (1). Thirdly, a married woman might, under a power in that behalf conferred upon her, bequeath any property by will, her will in that case amounting to an appointment of the property in execution of the power (k). And a married woman may now by will dispose of any property belonging to her for her separate use, either under the provisions of the Married Women's Property Acts, 1870 and 1882 (1), or under the trusts of any instrument (m); and, inasmuch as the property of a married woman is, by virtue of the Married Women's Property Act, 1882, made her separate property in all cases in which it was acquired since 1882, or even previously, where she was married since 1882, she may now, more often than not, make a will of her property. Nevertheless, owing to the construction placed upon these provisions (n), it became necessary to provide, by the Married Women's Property Act, 1893 (0), that a married woman's power of making a will of separate property should apply whether she was or was not possessed of separate property at the time of making it, and such will should not require to be re-executed or republished after the death of her husband ; thus enabling a married woman (as regards her separate property) to make a will exactly as a man would do, and exempting her from any necessity to re-execute the will when she is left a widow,
(b) Smith v. Tebbitt (1867), (1) Bro. Abr. Devise, 34 ; L. R. 1 P. & D. 298; Banks v. Tucker v. Inman (1842), 4 Man. Goodfellow (1870), L. R. 5 Q. B. & G. 1076. 549.
(9) Stevens v. Bagwell (1808), (c) Dig. 31, 1. 77.
15 Ves. 153; Re Atkinson,  (d) 4 Rep. 51.
2 Ch. 1. (e) Dr. & St. d. 1, ch. 7.
(h) Co. Litt. 133.
With regard to infants and the like, the incapacity to make a will in their case arises wholly from immaturity of age. The rule until a recent period was, that a male was competent to make a will of personal estate at the age of fourteen, and a female at twelve ; but neither
(k) Southby v. Stonehouse (1755), 2 Ves. 610.
(1) 33 & 34 Vict. c. 93, ss. 1, 7; and 45 & 46 Vict. c. 75, ss. 1, 2, 5.
(m) Peacock v. Monk (1750),
2 Ves. sen. 191 ; Taylor v. Meads (1864), 24 L. J. Ch. 203.
(n) In re Price (1885), 28 Ch. D. 709; and previously Willock v. Noble(1875), L.R. 7 H. L. 580; Dye v. Dye (1884), 13 Q. B. D. 147.
(0) 56 & 57 Vict. c. 63, s. 3.
of them at an earlier period (p), which was also the regulation of the civil law. But it was expressly provided by the Wills Act, 1837, that the will of a person under twenty-one years of age should not be valid (9),—this provision referring, of course, to testators generally, and not to soldiers and sailors on actual service.
2. The solemnities required for the execution of a will.Formerly, a testament (as regarded personal property) might be either written or verbal (otherwise called nuncupative), the former being published or declared by the testator as his written will, the latter being declared by the testator in extremis before a sufficient number of witnesses, and being only afterwards reduced into writing. But as nuncupative wills were liable to great impositions, and occasioned many surprises and perjuries, the Statute of Frauds (29 Car. II. (1677) c. 3) laid them under many restrictions, except when made by mariners at sea or by soldiers on active service (r); and indeed surrounded them by so numerous a train of requisites, that the things themselves fell into disuse long before they were expressly abolished. As regards written wills of personal estate, the general rule was, that no witnesses were required for their authentication ($); and if written in the testator's own hand (though it had neither his signature nor his seal, and although no witness had been present at its publication), the will was good, on proof of the handwriting merely (t). And even if written in another man's hand, and never signed by the testator, it was good, on proof that the writing was according to the testator's instructions, and had been approved by him (u). In all which particulars a will of pure personal estate differed
(p) Godolph. p. 1, ch. 8; Went. 212 ; Gilb. Eq. 74.
(9) 7 Will. 4 & 1 Vict. c. 26, s. 7.
(r) Re Hiscocks,  P. 78. (8) 2 Bl. Com. 501.
(t) Godolph. p. 1, ch. 21 ; Gilb. Eq. 260.
(u) Comyn, 452, 453, 454.
very considerably from a will of real estate; and eventually, therefore, the obvious improvement was introduced, of establishing one uniform rule, as regards solemnities and otherwise, for every will, whether of real or of personal estate. The Wills Act, 1837, accordingly requires, that every will (and also every codicil to a will) shall be a written instrument, signed by the testator (or by some other person in his presence and by his direction), and attested in his presence by two or more witnesses, present at the time of signing, no further or express publication of the will being required (v).
And with reference to the operation of a will on personal estate, it has been enacted, by the Wills Act, 1861 (2'), but only as regards pure personal estate, that every will and other testamentary instrument made within the United Kingdom, by any British subject who shall die after the 6th August, 1861, shall be a valid will and be admitted to probate—whatever may be the testator's domicile either at the time of making the will or at the time of his death--provided only it 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 was made ; and that every will made out of the United Kingdom by a British subject who shall die after the 6th August, 1861, shall be a valid will and be admitted to probate—whatever may be his domicile either at the time of making the will, or at the time of his death-provided only it be made according to the forms required either by the law of the place where it was made, or of the place of the testator's then domicile, or of his domicile of origin ; importance being given to the testator's domicile, inasmuch as it is the domicile of a deceased intestate which in general determines the distribution of his personal estate (y).
(v) Vide supra, vol. 1. p. 361. (a) 24 & 25 Vict. c. 114.
(y) Doglioni v. Crispin (1806), L. R. I H. L. 301.