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.