DAMODARAM SANJIVAYYA 

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA 

PROJECT TITLE

TESTAMENTARY SUCCESSION OF MOVABLES

SUBJECT

PRIVATE INTERNATIONAL LAW

NAME OF THE FACULTY

Ms NANDINI

Name of the Candidate

ATTILI. LEELA NAGA JANAKI RAJITHA
Roll No. 
2017018
VIII Semester
Contents
introduction................................................................................................................................3

objective of the study.................................................................................................................4

scope of the study:......................................................................................................................4

literature review:........................................................................................................................4

SUCCESSION TO MOVABLE PROPERTY...........................................................................5

English Law...............................................................................................................................5

Jurisdiction of court................................................................................................................5

Choice of Law........................................................................................................................6

Indian Law.................................................................................................................................7

Jurisdiction of the Court.........................................................................................................7

Choice of Law........................................................................................................................8

conclusion:.................................................................................................................................9

case analysis.............................................................................................................................10

bibilography:............................................................................................................................17
Testamentary succession of movables
INTRODUCTION
“ In private international law of most countries including England, India, The United states and
most countries of the European continent, it is an established rule that in respect of all
transactions relating to immovable property are ordinarily governed by the law of the situs of
the immovables. The reason for this rule is convenience and expediency, any other rule
would be ineffective as in the last resort the only the only effective order that can be passed
has to be in accordance with the lex situs of the property. English law recognized this rule as
early as 1845.

In the countries of continental Europe and other civil law countries all matters relating to
succession are governed by one single system of law, viz., and the law of the nationality of
the deceased. This is because these countries follow the principle of unity of succession
(France and Belgium are two exceptions) under which succession, testamentary as well as
intestate, and all matters relating to succession are regulated by one single system of law viz.,
the personal law of the deceased which most countries take to be the law of the nationality of
the deceased at the time of his death. In the civic law countries, as well as under the personal
law of Hindus and Muslims in India, the property vests in the heirs immediately on the death
of the deceased.

India, England and other countries which follow the common law traditions adopt the
principle of succession under which movables and immovable do not devolve under one
single system of law. In English law this distinction seems to be on account of historical
reasons. In England, freehold land could not be devised by will until 1540, while movables
could be bequeathed and were governed by the principle of mobilia sequuntur personam.
Although the historical reasons have disappeared, the distinction still exist in English Private
International Law under which succession to immovable is regulated by the lex situs and not
by the personal law of the deceased, while succession to movables is regulated by the lex
domicile of the deceased. Thus, if a person dies intestate leaving behind immovables in
England, then devolution to his property would be in accordance to English internal law,
whatever might have been his nationality or domicile. On the other hand, a British national or
a person domiciled in England dies leaving behind immovable properties in India, then
devolution to his property would be governed by the Indian law, i.e. the way an Indian court
would be governed by the Indian law, i.e. the way an Indian court would determine the
question. Section 5, Indian Succession Act, 1925 statutorily recognizes this principle.

The section runs as under:

(1) Succession to the immovable property in India of a person deceased shall be

regulated by the law of India, wherever such person may had his domicile at the time of his
death.

(2) Succession to the movable property of a person deceased shall be regulated by

the law of the country in which such person had his domicile at the time of his death.

The rules of English and Indian Private International Law could hardly be considered as
satisfactory. The will Act, 1963 has tried to solve of the difficulties. The will act.1963 has
tried to solve of the difficulties. The Act apples to form and construction, but as Graveson
suggests, it is submitted rightly, by analogy it can be applied to other branches of
testamentary succession.”

OBJECTIVE OF THE STUDY

The objective of the study is to identify the different similarities and differences between
private international law of different countries in testamentary succession of the movables.
The paper mainly focused on the English law and Indian law. The objective compare them
and draw distinctions between regarding jurisdiction, choice of law and law of the land.

SCOPE OF THE STUDY:

The scope the study is limited to the comparisons laws of different countries. It is limited o
English and Indian law. The objective compare them and draw distinctions between
regarding jurisdiction, choice of law and law of the land.

LITERATURE REVIEW:
Rules on the conflict of laws in the matter of sucession in Romanian private international law
(Tribuna Juridicia)1

1
Bucharest Academy of Economic Studies, Law department, vol. 4(2), pages 176-181, December
The law applicable to inheritance made the distinction between the inheritance of movable
property (to which the national law of the deceased applied) and the inheritance of
immovable property (to which lex rei sitae applied). At present, the Civil Code establishes, as
a rule of principle, that inheritance is subject to the law of the state on whose territory the
deceased had habitual residence at the time of death. Thus, in the new legal regulation, the
Romanian legislator considered, on the one hand, the Hague Conventions in this matter, and
on the other hand, European Union law. In this article it has been analysed the law applicable
to inheritance in Romanian private international law, namely the law applicable to wills.
Likewise, conducted a comparative study with the legislation of other states in this matter.
As regards the domain of application of the law on inheritance in Romanian private
international law.

David Colwyn Williams, Land Contracts in the Conflict of Laws--Lex Situs: Rule or
Exception2

But in general the situs rule is weakening all through the law of conflict of laws. Writers have
been almost unanimous in their opposition to the rule when invoked to prevent the
recognition of foreign land decrees. 2 It may well be that it is in this area that land taboo will
first disappear. It appears that land contracts too are now widely recognized to be subject to a
law other than that of the situs, and are, instead, about to share the conflicts law governing
other contracts together with all the difficulties inherent in that law.

SUCCESSION TO MOVABLE PROPERTY

ENGLISH LAW
Jurisdiction of court
“Jurisdiction of the English Court: In English Law succession is usually termed as beneficial
distribution of property. Theoretically, if the English court has jurisdiction to grant
administration, it has also jurisdiction to determine beneficial distribution of property. But as
has been earlier, in the absence of the local assets the English court exercises jurisdiction only

2
11 Hastings L.J. 159 (1959).
when the foreign country where assets are situated requires a grant of administration from the
court of the country of the domicile of the deceased. But if he died leaving behind property in
England, the English court has jurisdiction to determine the validity of his will, the
construction and effect of the will, persons entitled to succeed to property and all matters
connected with succession, even though the deceased died domiciled abroad.

Jurisdiction of Foreign Courts: The court of the country where the deceased died domiciled
have jurisdiction to determine succession to all movables whether situated, though courts do
not recognize that the courts of domicile have exclusive jurisdiction. However, while title has
been adjudicated upon by the courts of the domicile, such adjudication is binding upon, and
must be followed by, the courts of this country. It may be conjected that the English law
would concede jurisdiction to courts of the country where movables are situated even if the
deceased is not domiciled there, as English court also exercise Jurisdiction on this basis. ”

Choice of Law
“ Testamentary succession to movables is also governed by the law of the country where the
deceased was domiciled at the time of his death. If a deceased person domiciled elsewhere
dies leaving behind his assets in England, then a grant of probate in England is essential and
so far as the admisntration is concerned it is governed by the lex fori, but then all questions
relating to beneficial succession must be decided in accordance with the law of the domicile
of the deceased. In other words, the executor must ascertain as to who are the persons entitled
to succeed and in what proportion they would take the property under the law of the domicile.

Capacity to make will: The testamentary capacity, i.e. personal capacity to make will, is
determined by the lex domicile of the testator. If the testators domicile is the same at the time
of making of the will as well as at the time of the death, there is no difficulty.

Formal Validity: Under the English common law the rule has been that the will of
movables to be formally valid must comply with the law of the domicile of the testator at the
time of his death. This rule led to much inconvenience and hardship and led to the passing of
the will Act, 1861which was not only unsatisfactory but discriminatory between the British
subject and foreigners.

Material Validity: The English Private International Law laid down that the material
validity of a will is governed by the Lex Domicilii of the testator at the time of his death.
 Construction of Wills: The writers of English law and some English decisions take the view
that construction of will should be made under the law of the domicile of the testator at the
time when the will is made.

Revocation of Wills : The rules relating to revocation of will differ from country.
Ordinarily, a person who has capacity to make will, will also have the capacity to revoke it. A
will may stand revoked by the act of the testator, or by the operation of law. ”

Power of Appointment

“ English law empowers a person to give, by an instrument, such as will, to some other person
or to himself a power to appoint by will the person or persons who would succeed to the
property on the death of the person to whom the power is given. The person who thus gives
the power is known as the ‘Donor of the Power’ of ‘the appointor’ and the person to whom
the power is given is known as ‘the donor of the power’ or ‘the appointee’. The power of the
appointment may be either general or special. ”

INDIAN LAW
“ So far as the testamentary succession is concerned, in India, members of all communities are
governed wholly or partly by one law, viz’. the Succession Acr, 1925, though different rules
of succession apply to members of each community in the case of intestate succession. Law
of testamentary succession in India is contained in Part VI of the succession Act, 1925, and
constitutes the law of testamentary succession in India, and applies to all communities, except
the Muslims. To the Hindus it applies with some modifications. As to the other communities,
such as Christians and Parsis, it applies fully.

Section 5(2) of the Succession Act, 19253, as has already been noted, contains a rule of
conflict of laws. It lays down that succession to the movables of a deceased person is to be
regulated by the law of the country in which such person had his domicile at the time of his
death. But the application of this provision has been excluded in case the deceased is a Hindu,
Mohammedan, Buddhist, Sikh or Jain. ”

Jurisdiction of the Court

“ Jurisdiction of the Indian Court: It has been seen in Part I of this chapter that under the
Succession Act, 19254 letters of administration or probate can be obtained in respect of the

3
Section 5(2) of the Succession Act, 1925
4
Succession act, 1925
letters of administration or probate can be obtained in respect of the estate or will of any
person, including a Hindu and a Muslim. The Indian courts exercise jurisdiction either on the
basis of presence of assets within the jurisdiction, or that the deceased had a fixed place of a
abode at the time of his death within the jurisdiction. The Indian court does not have as wide
a jurisdiction as the English court has under the Act of 1932 to grant administration in respect
of ‘any deceased person’. But it seems, in view of the generality of the provision of s. 5(2) 5,
in respect of movables, the court may exercise jurisdiction on the basis that the deceased died
domiciled in India whenever it is called upon to exercise jurisdiction in the interest of justice.

Jurisdiction of Foreign Court: There is no reported decision of Indian court as to on what

basis the Indian Courts would recognise the jurisdiction of the foreign courts to determine
succession to movables. In this connection the main question is : suppose, an Indian Hindu
dies domiciled in England leaving behind assets in India, will the Indian Courts accept the
determination of Succession in accordance with the lex domicilii of the deceased? The
question becomes complicated as for Hindus and Muslims, strictly speaking there is nothing
like lex domicilii, they are governed by their personal law, which is the law of their
community. When the English court determines succession on the basis of the lex domicilii of
the deceased, then it should apply the personal law of the deceased Hindu, as in his case,
broadly construed, that will be the law of his domicile. If the English court applies any other
law, then the Indian courts will not accord recognition to such assumption of jurisdiction. ”

Choice of Law
“As has been seen earlier, with minor exceptions, there is one law of testamentary succession
in India. Muslims are governed by their own law of testamentary succession and provisions
relating to testamentary succession in the Succession Act, 1925 do not apply to them.
However, provisions relating to them.

Capacity: The Indian law lays down the broad rule that succession to movables is
governed by the law of the domicile of the deceased at the time of his death. The question is:
does the general principle apply to capacity to make will? It is submitted as far it concerns the
personal capacity, it should be governed by the law of the domicile of the deceased at the
time of making of the will, as the same arguments apply here as they apply under English
Private International Law.

5
Sec5(2) of the Succession Act, 1925
 Formal Validity: India has not enacted anything like the English statutes of 1861and 1963.
Therefore, it seems that the general rule enacted in s. 5(2)6, Succession Act would apply to
formal validity of wills. But in respect of a will of foreign domiciled abroad, the formal
validity would be determined by the domiciled abroad, the formal validity would be
determined by the lex domicilii of the testator at the time of his death-this is because of the
provision I s. 5(2), Succession Act, 1925.

Material or Essential Validity: It seems that under India private international law the same
rules apply to material validity as they apply to formal validity. The material validity of the
will of a foreigner will be governed by the law of his domicile at the time of his death. Under
Muslim law, a Muslim cannot bequeath more than one-third of his property; if an Indian
Muslim bequeaths one-half of movables situated in India and if the validity of his will comes
into question before an Indian court, then such a bequeath will not be valid even if the
Muslim died domicile in England.

Construction of the Will: It seems that the same consideration apply to the interpretation
or construction of will of movables under the Indian law as they apply under English law.
The Succession Act, 1925, Chapter six contains provisions relating to construction of Wills.

Revocation of Will: under the law a will may be revoked: (a) by another will or codicil of
the deceased or by some writing declaring an intention to revoke the same and executed in
the manner a will is executed (b) by destroying the will, (c) by marriage of the testator, but
this doesn’t apply to the wills of Hindus and Muslims. ”

CONCLUSION:
“ Most foreign Countries have adopted the principle of unity of succession by which questions
relating to intestacy or to wills are governed by one single law, the personal law of the
deceased, irrespective of the nature of the subject-matter. The common law of England,
however, has consistently adhered to what is called the principle of succession under the
destination of immovables on the death of the owner is governed by the lex situs, not by the
law of is domicile as is in the case of movables. India, England and other countries which
follow the common law traditions adopt the principle of succession under which movables
and immovable do not devolve under one single system of law. In English law this distinction
seems to be on account of historical reasons. In England, freehold land could not be devised
by will until 1540, while movables could be bequeathed and were governed by the principle
6
ibid
of mobilia sequuntur personam. Although the historical reasons have disappeared, the
distinction still exist in English Private International Law under which succession to
immovable is regulated by the lex situs and not by the personal law of the deceased, while
succession to movables is regulated by the lex domicile of the deceased. ”

CASE ANALYSIS
In re Annesley. Davidson vs Davidson7

Citation: [1926] Ch 692

Facts: Sybil Annesley, a British woman, married James O’Donel Annesley whose domicile
“

was English and lived in France. After her husband’s death, she resided continuously there
until her death in 1924. She never took steps prescribed by Art. 13 of the French Civil Code
to obtain a formal French domicile. At the time of her death, she owned an immovable
property in France (Chateau de Quillebaudy), and movable property (trust money) both in
France and in England. On November 1919, she executed a holograph will in French
language, stating that her two daughters had their share of her property. On December 1919,
she likewise executed in France a will in English form, revoking all former testamentary
dispositions. The will also provide that after all dispositions of her real and personal estate,
the ultimate residue is given to her daughter, Miss Annesly, absolutely. In addition, the will
also contained provisions wherein Sybil stated that she has no intention of abandoning her
England domicile, and that she intend to remain a British subject. On July 1921, she executed
also in France a codicil in English form, confirming her dispositions in the will. ”

Issue: What law will govern, as to the determination of the testatrix’ domicile which will
affect the dispositions of the will: French or English law?

Reasoning: Domicile flows from the combination of fact and intention, the fact of residence
“

and the intention of remaining for an unlimited time. The intention required is not an
intention specifically directed to a change of domicile, but an intention of residing in a
country for an unlimited time. The Court here conceded that domicile cannot depend upon
mere declaration, though the fact of the declaration having been made must be one of the
elements to be weighed in arriving at a conclusion on the question of domicile. After careful
consideration of the evidences, it was ruled that according to French law, in administering the
movable property of the deceased foreigner who, according to the law of his country, is

7
[1926] Ch 692
domiciled in France, and whose property must, according to that law, be applied in
accordance with the law of the country in which she was domiciled, will apply French
municipal law, even though the deceased had not complied with Art. 13 of the French Civil
Code. ”

Conclusion: Regards her English personal estate and her French movable property the
testatrix in this case had power only to dispose of 1/3 by her will.

Clarke-Sullivan v Clarke-Sullivan8

Citation: [2021] 1 WLUK 23

Facts: The claimant applied under the Administration of Justice Act 1985 s.48 for the court
to authorise action to be taken in reliance on counsel's opinion in respect of his deceased
wife's will. The claimant and his wife were born in New Zealand. They lived in London from
2006-2010 and then lived in Dubai from 2010-2015, before returning to the UK where they
lived until the wife's unexpected death in 2019. They had created a discretionary trust in 2014
through their New Zealand solicitors, and they and their future issue were beneficiaries of the
trust. In 2015, while still living in Dubai, the wife made a will through her New Zealand
solicitors. She told her solicitors that she was non-domiciled in New Zealand for tax
purposes. After moving to London, she bought a property. The claimant and his wife wound
up the trust in 2016 shortly before their only child was born. Under cl.7(b) of the will, the
claimant was directed as executor to pay her net residuary estate into the trust. However, at
the date of her death the trust no longer existed. Two English counsel had provided opinions
on the effect of cl.7(b); they agreed that under English law the clause remained effective,
even if the trust ceased to exist in 2016, as a separate trust was created on the wife's death
incorporating the terms of the original trust deed. Counsel from New Zealand indicated that
under New Zealand law the court might interpret the clause as meaning that the residue went
to a testamentary trust on the same terms as the original trust.

Issue:

Whether the will claimed is valid or not?

Whether the domicile of the deceased is New Zealand or United Kingdom?

Reasoning:

8
[2021] 1 WLUK 23
The claimant had referred to Dicey, Morris & Collins, Conflict of Laws, 15th edn (London:
Sweet & Maxwell 2018), rules 154 and 155 concerning the material or essential validity of a
will of movables and immovables. Guidance as to the meaning of material or essential
validity was contained in Theobald on Wills , 18th edn, and in Dicey. The issue in the instant
case was not one as to the material or essential validity of the will or the clause; it was an
issue of interpretation. The central meaning of the clause was clear: the wife intended to give
her residuary estate to the trustees of the trust. Since there were no longer any such trustees at
the date of her death, the issue was whether the clause could be construed more widely as
intending to create a trust on the terms of the trust deed. However, questions of construction
or interpretation were governed by the system of law intended by the testator, which was
presumed to be the law of their domicile at the time the will was made, unless a contrary
intention appeared from the will. That rule applied to immovable property, and was
reinforced by the Wills Act 1963 s.4 which provided that the construction of a will was not
altered by reason of any change in the testator's domicile after the execution of the
will, Philipson-Stow v Inland Revenue Commissioners [1961] A.C. 727, [1960] 11 WLUK
133 followed. Accordingly, the law to be applied to the interpretation of the will was
the law of the wife's domicile at the date she made the will. The wife's domicile of origin was
New Zealand. Although she had lived and worked in the UK and Dubai, she retained a right
to vote in New Zealand, which she exercised. The claimant's evidence was that they always
considered New Zealand to be their home and intended to return there. The wife had not
intended to reside permanently in Dubai, a country with which her only connection was
employment on a time-limited basis. She had therefore not acquired Dubai as a domicile of
choice. The position with respect to England was more nuanced: the purchase of a property in
London was a factor pointing towards a degree of permanent connection with England.
However, when she made the will she was not resident in England and had not been resident
there for five years. Taking all of those facts into account, she had not formed the requisite
intention to permanently or indefinitely remain in England. New Zealand remained her
domicile when she made the will.

Conclusion:

Section 48 provided the High Court with power to authorise action to be taken in reliance on
counsel's opinion where any question of construction arose out of the terms of a will or a
trust. However, under s.48(1)(b) the opinion had to be given by a person who had a 10-year
High Court qualification. There was no evidence before the court as to the English counsels'
standing and the condition in s.48(1)(b) was not met. In order to deal with the claim in the
most efficient way, the court granted permission to amend the claim form to claim
declarations that (a) New Zealand law was applicable to the construction of the will and (b)
on a proper construction, applying New Zealand law, the wife's estate was held
on testamentary trust to be distributed in accordance with the will incorporating the terms of
the trust.

Fuhrhop v. Austin9

Citation: 385 Ill. 149 (Ill. 1943)

Facts: Abner Wilson and Synder Wilson were lawfully married. Out of this lawful marriage,
“

Fred Walter Wilson, Beatrice Fuhrhop, Gertrude Austin, Willian S. Wilson and Thomas C.
Wilson were born. Abner Wilson entered into a secod marriage with Liza E. Newsom without
giving divore to the 1st wife. This marriage took place in the State of Arkansas, where both
Abner M. Wilson and Liza E. Newsom were domiciled, and was a ceremonial marriage
performed by a justice of the peace according to the laws of Arkansas. Abner M. Wilson and
Liza E. Newsom continued to live together as husband and wife domiciled in Arkansas after
their marriage and, while so living together, Christine Wilson and Margaret Wilson Joyner,
the appellees herein, were born unto them. Fred Walter Wilson, one of the children of Abner
M. Wilson by his first marriage, died intestate on, leaving surviving him as his only heirs, his
mother, Sydner Wilson, his four full brothers and sisters, Beatrice Fuhrhop, plaintiff below,
the defendants, Gertrude Austin, William S. Wilson and Thomas C. Wilson, and also the
defendants and counterclaimants, Christine Wilson and Margaret Wilson Joyner, who claim
to be his legitimate half sisters. At the time of his death Fred Walter Wilson possessed a fee
simple title to real estate located in Illinois which is the subject of this partition suit. Abner
Wilson predeceased Fred Walter Wilson and Sydner Wilson died testate after Fred Walter
Wilson on July 28, 1942, leaving surviving her the aforesaid Beatrice Fuhrhop, Gertrude
Austin, William Wilson and Thomas C. Wilson, her children, as her only heirs-at-law. Under
the terms of the will of Sydner E. Wilson her executor is directed to turn all her property into
cash and divide same equally among her four children above mentioned. ”

Issues: Whether the illegitimate sisters can claim the property?

Reasoning: That under the law of Arkansas the appellees, at the time of their birth, were
“

legitimate; that legitimacy depends upon the law of the domicile and since appellees are
9
385 Ill. 149 (Ill. 1943)
legitimate under the laws of Arkansas, they are legitimate under the laws of Illinois and are to
be deemed legitimate sisters and brothers of Fred Walter Wilson. That the legitimization of
the appellees, under the law of Arkansas, is not against the public policy of Illinois but is
consistent therewith. The full-faith-and-credit clause of the constitution of the United States
requires the recognition of legitimation given by the statute of Arkansas. There is no dispute
between the appellants and appellees as to the shares which each should have in the real
estate in the event it is determined that the appellees are entitled to inherit from Fred Walter
Wilson, deceased. It is well settled at common law that the issue of a void marriage are
illegitimate. ”

Conclusion

The Illinois court refused to allow children born in Arkansas and legitimated under an
Arkansas saving statute to inherit Illinois land. The claimants were children of a man who
had not divorced his first wife, although his second wife (the claimant's mother) had married
in good faith. The Arkansas statute provided that the issue of a legally void marriage are
legitimate, but Illinois still had the common law rule that issue of a void marriage are
illegitimate. The court again relied on the principle that the descent of real estate is governed
by the law of the situs, and that no one can take except those who are recognized as
legitimate heirs by that law.

Sankaran Govindan vs Lakshmi Bharathi & Others10 

Citation: AIR 1974 SC 1764

Facts:- Krishna went to England in 1920 for further study in medicine, for some time his
father helped him by providing money. After the death of his father his brothers refuse to
help him, because of that he find his own resource for his studies. He got financial help from
Miss Hepworth, who help him financially and also spur him. When Krishna qualified the
practice he setup his own practice and also bought a house and few moveable properties. He
has a assistant name Mary Woodliff who help him. After the death of the Krishna, Mary and
Arksey has filed suit for letter of administration, which was in there favor. This was
challenged in the court that the foreign judgment is not binding as it is obtain by fraud and
domicile of Krishna was not England. Therefore, the English court has not authority to deal
with this case. 

10
AIR 1974 SC 1764
Issue:- whether English court have jurisdiction on this case.

Reasoning:- while taking into consideration of the deceased intention whether he want to be

domiciled of England or not, for that we have to look into the his aspiration, financial,
expectation all should be taken into consideration to answer this. Further, according to private
international law any court has give foreign judgment for that they should have jurisdiction
otherwise that judgment is enforceable in India. A judgment declaring the domicile of person
is judgment in rem and therefore notice must be given to everyone who is affected by it.

Conclusion:  held that the judgment given by the English court for moveable or minor thing
is not valid, whereas, the judgment given for the immovable property is valid as the law
governed the immovable property is based where it is situated i.e lex situs. According to
English law succession of immovable property will be determined by lex situs.

Dellar v Zivy11

Citation: [2007] 10 WLUK 196

Facts: The claimant solicitor (H) applied for summary judgment in his claim for a declaration
as to the devolution of the estate of a third party deceased person (P). The second to fourth
defendants (D) applied to strike out the claim and to set aside the permission given to H to
serve the proceedings on D out of the jurisdiction. P had lived in England from the late 1970s
until his death. H's firm executed a will for P in which P stated that his domicile was
England, and that H's precursor at the firm of solicitors and the first defendant (Z), who was
his sister, should be the executors and trustees of the will. The trustees held the residuary
estate for Z subject to a condition that she survived P by 56 days. The will included a clause
leaving shares in two French companies to D but that clause was subject to the gift to Z. By
the time of his death P had disposed of his shares in one company. The company's assets
were sold and P's shares amounted to approximately £3 million. D wrote to P's solicitors
alleging that the will did not reflect the provisions that P had told them would be made for
them, namely that they would receive the shares. After the will was admitted to probate,
information was provided to D, indicating that P had stated a wish to alter his will to cut out
Z but that he had taken no action to follow it up. D brought proceedings in France claiming
that the shares were the subject matter of a legacy to them. The French court held that it had
jurisdiction to hear the matter and H and Z appealed against that decision. H applied to the
English court for a declaration that the shares passed to Z. Permission was granted to serve
11
[2007] 10 WLUK 196
the claim on D outside the jurisdiction. H applied for summary judgment. The French court
decided to defer ruling on the appeal until the pronouncement of the decision of the English
court concerning the interpretation of the will. The second to fourth defendants filed
acknowledgements of service out of time and applied for the claim to be struck out on the
basis that the court either did not have jurisdiction or that England was not the convenient
forum. D applied for the permission to serve the proceedings out of the jurisdiction be set
aside for material non disclosure.

Issue:

Whether English or French law should apply to the interpretation of P's will?

Reasoning:

A will was to be interpreted in accordance with the law intended by a testator. In the absence

of indications to the contrary, that was presumed to be the law of his domicile at the time
when the will was made. However, that was a rebuttable presumption. It might be apparent
from the nature of the will or other matters that the testator had written his will with reference
to and with the intention that it should be interpreted according to the law of some other
country. Once a will had been interpreted it might, however, be necessary to consider its
material or essential validity. In the case of movables, that question was governed by
the law of the testator's domicile at the date of his death. In the circumstances of the instant
case it was absolutely clear that P intended his will to be interpreted in accordance with
English law. As a matter of English law the meaning of P's will was clear. The only specific
bequest in the will was a gift to P's godson. The rest of the estate, described as the residue,
was devised to the trustees upon trust to sell, call in and convert into money. That caught
everything else including the shares in dispute. The clause in the will setting out how the
residuary estate was to be disposed of clearly stated that the whole residuary estate was to be
held for Z provided that she survived P for 56 days, which she had done. Inevitably therefore,
the disposition under the clause leaving the shares to D did not take effect and H was entitled
to summary judgment. (2) In the circumstances England was clearly the most appropriate
forum for the dispute to be heard. The will was an English document, drafted by an English
solicitor and expressed in technical terms of the laws of England. It had to be interpreted
according to English law. The substantive issues were straightforward and could be
determined in England without any further evidence at all. Indeed, H was entitled to
judgment. Although D were French nationals resident in France and the case related to shares
in a French company, England was the forum with which the dispute had the most real and
substantial connection.

Conclusion:

Wills were to be interpreted in accordance with the law intended by a testator. In the instant

case the testator, who was of French origin, intended his will to be interpreted under
English law and it was clear on the evidence that his residuary estate was held by the first
claimant solicitor in trust for the first defendant.

BIBILOGRAPHY:

 www.westlawasia.com
 Bucharest Academy of Economic Studies, Law department, vol. 4(2), pages 176-181,
December

 Conflict between the Principle of Unitary Succession and the System of Scission, Atle
Grahl-Madsen

 di-iil.org/app/uploads/2017/06/1967_nice_01_en.pdf