Introduction

General assignments of property normally occur where the entirety of a persons property,
movable, passes completely or partially by operation of law. A legal system normally operates
on property in this way in order too give effect to a legal purposes embodied either in public
policy or in it social organization. The occasions on which a general assignment takes place by
operation of law accordingly limited. They are chiefly of three kinds :the passing the property
on death to the personal representative of the deceased; the passing of bankrupts property, on a
bankruptcy to his trustee, or the assets of accompany to its liquidator on winding up; and the
operation of marriage or operation of law, such operation may in all three cases of assignment on
death, the property passes to the executor, if any, appointed by the will; in bankruptcy or winding
up of a company, the debtor or the company may file his or its petition; and of the parties
assignments on marriage is an obvious case where the act of the parties is an indispensable
perquisite.

These occasion on which a general assignment takes place involves two different legal
principles, that of the personal law of the party concerned, and that of the personal law of the
party concerned, and that of the Law governing the particular type of property involved.

Meaning of Will:
The word Will denotes any testamentary document1. A Will is a declaration made in
accordance with statutory requirements of a testator's intention regarding matters they wish to
take effect on or after death. No particular form or wording is necessary but it must be a
revocable ambulatory disposition of property, taking effect on or after death and the testator must
have had the intention to make a testamentary instrument. A Will may be conditional, joint or
there may be mutual Wills where two persons agree to execute separate Wills on agreed terms.
The Will may contain secret or half-secret trusts or even precatory trusts. A document may be
treated as part of the Will even though it itself is not attested (conditions apply).

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Private International Law By Dr. S R Myneni, p.179
A Will not executed in accordance with the Wills Act 1837 (WA 1837) is unlikely to be proved.
This is likely to result in a negligence claim if the formalities have been conducted by a
professional. There is a relaxation of the rules for privileged and statutory Wills.

Section 2(h) of The Indian Succession Act, 1925 provides that will means the legal declaration
of the intention of testor with respect to his property which his to be carried into effect after his
death. As per section 3(64), of the general Clauses Act 1897 will shall include codicial and
every writing making a voluntarily posthumous disposition of property.

The position at common law2:

The common law conflict of laws rules relating to the formal validity of wills are, and have been
for at least two centuries, clearly established. These rules are that the formal validity of a will of
immovables is governed by the lex rei sitae and that the formal validity of a will of movables is
governed by the lex domicilii tempore mortis. Thus, the rules governing the formal validity of a
will at common law are a combination of the lex situs and the personal law of the deceased
testator.

These same rules govern succession to property. The common law rules centre on the dichotomy
between movables and immovables, immovable being land and movables being all things other
than land, including intangibles. This dichotomy must be used in characterizing property dealt
with in a will in order to determine which conflicts rule applies to the case and therefore, in turn,
which law is the competent law to be used in determining the formal validity of the will. The
characterization of the property using the movables and immovables dichotomy must be done
independently of any consideration of personality or realty3.

As pointed out by Dean Falconbridge in his classic work, Essays on the Conflict of Laws, the
movables and immovables and the personalty and realty dichotomies are distinct in two ways:
first, they are substantially divergent in that some interests in immovables are personality and,
secondly, the movables and immovables dichotomy is a distinction between different kinds of
things whereas the personalty and realty dichotomy is a distinction between different kinds of

2
P.R.H.Webb and D.J.L.Brown,(London: Butterworth Publications,1960) P.25
3
Private International Law By Dr. S R Myneni, p.112
interests in things. That distinction per se is not a fundamental concern of this paper; what is a
fundamental issue, though, is whether any such dichotomy, whether movables and immovables,
personalty and realty, or any other, used in categorizing property should be employed with
respect to the rules governing the formal validity of wills. The common law rules set out above
were imperative rules.

The hardships which could be produced by these rules were significant. The inconveniences and
injustices produced by the imperativeness of the lex rei sitae with respect to the formal validity
of wills of immovables will be considered later in the context of the discussion concerning
scission." With regard to the imperativeness of the lex domicilii tempore mortis in the case of the
formal validity of wills of movables, consider the situation of a testator whose domicile changes
between the time of the making of his will and the time of his death. Although the will may have
conformed to the law of the testator's domicile at the time he made his will, it might nevertheless
not conform to the law of his domicile at the date of his death. The following, by Professor
Fratcher, appropriately evaluates the common law rules4:

Capacity to make or revoke Will:

Testamentary capacity is a critical factor in the making of a Will as without it the Will is invalid.
The testator must be of sound disposing mind (consisting of the three elements of mind, memory
and understanding) when giving instructions for a Will, and when they execute the Will.
Supervening insanity will not invalidate a Will but nor will a recovery from insanity validate a
Will executed without testamentary capacity. Where it is established that the testator either had
or lacked capacity, there is a presumption that this state continued. Both presumptions are
rebuttable.There is a presumption that the testator was sane at the time that a duly executed Will
which, on the face of it, appears to be rational, but if the testator's capacity is contested, the
propounder of the Will must prove the existence of the necessary mental capacity at the relevant
time that instructions for the Will were given and when the Will is executed.

The validity of wills :

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Private International Law By Louis Standworth p.899
In intestate succession, the lex domicilli in case of movable and the lex situs in case of
immovable property determines the heirs who are entitled to take the relative proportion to which
they are entitled to. The rights of representation, the rights of surviving spouse, the liability of
the distributes for unpaid debts, the relationship of the claimant with the deceased, and like
matters.

Testamentary capacity

At common law capacity to make a will depends on the lex domicilli of the testator in case of
movable and on the lex situs in case of immovable, in both cases probability of the date of his
death.

a) Wills of movables

Movables include all things, tangible or intangible, that are not immovable. A state has absolute
authority over personal or movable property within its borders. The state has the right to regulate
the transfer of such movable property and only in instances where the state allows can such
property be affected by the law of any other state. According to an ancient legal fiction,
movables follow the person. Movable property was supposed to stay with the person of the
owner. Therefore, such property did not have any situs other than the domicile of the owner.
This doctrine resulted in the evolution of the universal principle that for most purposes personal
property should be governed, no matter where actually situated, by the law of the domicile of the
owner; which law would change with a change of domicile. However, in certain circumstances,
the law of the state where the property was actually situated, rather than the domiciliary law is
applied to the transfer.

The validity of a conveyance of tangible chattels or securities is determined by the law of the
state where the chattel is situated at the time of the conveyance. Likewise, the formalities such
as acknowledgement, necessary to the validity of a conveyance of a chattel, the nature of
interests conveyed, the effect o the conveyance on pre-existing interests in the chattel are
determined by the law of the state where the chattel is situated at the time of the conveyance.
Intangible personal property also follows the person and is governed by the law of the domicile
of the owner. In the case of debt, being an intangible, the property is governed by the domicile
of the creditor. The validity and effect of a lien on a chattel are determined by the law of the
state where the chattel is at the time when the lien is created. As a matter of public policy, a state
is empowered to decide whether to apply its own rules to property, within the state, of foreigners
who choose to place it there for custody or investment, and to honor or not the formal
agreements or suggestions of such owners by which the states law would apply. Generally, law
of the place of contracting determines if a right under a contract is capable of being transferred
by the owner.

Law of the state where a transfer is made governs the validity of the transfer of a chose in
action. However, if the transfer of a chose in a state other than the state wherein the chose is
located conflicts with the interests of the latter state, it will not be regarded as valid in such state.
The Restatement provides that as between persons who are not both parties to the conveyance of
a right embodied in a document, the effect of the conveyance depends upon the effect of the
conveyance of the document, and this is determined by the law that would be applied by the
courts of the state where the document was at the time of the conveyance. Such courts usually
apply their own local law.

b) Wills of immovable property

The capacity to make a will of immovable is governed by the law of the place where they are
situate, probably as that law stands as the date of testators death.

Formal validity of Will :

Matters of formal validity generally include rules as to whether a will should be written or oral,
the requirement of witnesses and their number, and production to a public notary. The English
rules as to form are contains in the Wills Act 1837, as amended by subsequent statutes. As in
matter of capacity, the common law adopted the distinction in matters of form between movables
and immovable and this distinction still applies except in the case covered by the Wills Act, 1861

a) Wills of immovable:
The form of a will of immovable must comply with the law at the date of the testators death of
the place where the immovable are situate. Exceptions to this rule have been created by the Wills
Act, 1861, in respect of such immovable as are treated by the English Law as personally.

b) Wills of movables:

At common law, the formal validity of a will of movables depends on the lex domicilli of the
deceased at the date of his death. But this common law was capable of working great hardship in
the case of persons domiciled in England who made a will abroad in local form, or who changed
their domicile between the date of making the will and the date of their death. This inherent
hardship appeared in many cases, as a result of which the Wills Act, 1861, was passed.

Essential validity of will5

Within the term essential validity one comprised such matter as compliance with the
perpetulity rule, or a rule against accumulation of income, the effect of restraits, the validity of
exercise of powers of appointment, or the validity of the extent of any disposition made by will.

a) Wills of immovable:

In accordance with the general principle, the essential validity of wills oh immovable is
determined by the lex situs of the land at the date of testator s death. Accordingly, whether a
will offends against the Accumulations Rule is a question to be resolved by the law of the place
where the land is situate, not by the lex domicilii of the testator. On the same principle, reference
must be made to the lex sirtus to determine whether any gift of land to charity is in excess of the
limits permissible legally, though it is otherwise when a testator domiciled abroad gives not land
directly, but money for the purchase of land. In such a case the will would be governed by the
law of his domicile as a will of movables, and the validity of the bequest would accordingly
depend on any restrictions imposed by law.

In the case of Mayor of Canterbury v. Wyburn6, the court held that the will was one of the
movable and reference must be made to the Law of the testators domicile on the question of
essential validity.

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Public International Law Paperaback, 2017
 b) Wills of movable:

Movables include all things, tangible or intangible, that are not immovable. A state has absolute
authority over personal or movable property within its borders. The state has the right to regulate
the transfer of such movable property and only in instances where the state allows can such
property be affected by the law of any other state. According to an ancient legal fiction,
movables follow the person. Movable property was supposed to stay with the person of the
owner. Therefore, such property did not have any situs other than the domicile of the owner.
This doctrine resulted in the evolution of the universal principle that for most purposes personal
property should be governed, no matter where actually situated, by the law of the domicile of the
owner; which law would change with a change of domicile. However, in certain circumstances,
the law of the state where the property was actually situated, rather than the domiciliary law is
applied to the transfer.

The essential validity of a will of movable is determined exclusively by the Law of the testators
domicile at the date of his death. Accordingly, a change of domicile by the testator between the
date of making his will And that of his death, though not affecting the validity of the will be
reason of section 3 of the Wills Act, 1861, may affect the extent of disposition he has made in
general terms.

In the case of Re Groos7, the testatrix, who was not a British subject, made a will while
domiciled in Holland and a week later married a domiciled Dutchman. By the Dutch law the will
was unaffected by the marriage but according to English Law it was thereby revoked. The parties
Acuired a domicile in Englands and after the date of the testatrix her husband moved for a grant
of probate.

Revocation of wills
Any person who has capacity to make a will would normally have capacity to revoke it. The
rules relating to revocation of will differ from country to country. A will may stand revoked by:

The act of the testator:

6
(1895) AC 89
7
(1915) I ch 572
The Wills Act, 1861 provides for one case of revocation when a will is revoked by another will.
Under the act, a revocation by will shall be valid if it complies with any system by which the
revoked will be valid under Act.

The other way of revocation of will by the act of the testator is by destruction of the will such as
tearing of or burning. The validity and effect of revocation by the deliberate act of the testator, as
by destination, cancellation, or making a new will should depend on the law of his domicile at
the time of his death so far as relates to movables, and on the lex situs as to immovable disposed
of by the will.

The operation of law.

As a validity of a will depends on the law of the testators domicile at the death, a change of
domicile by the testator after making his will may operate to revoke it, irrespective of his
intention. The common law rule, which always referred validity to the law of the testators last
domicile, has been qualified by section 3 of the Wills Act, 1861.

Indian Law relating to testamentary Succession or will:

law of testamentary succession in India is contained in Part VI of the Act8, and constitutes the
law of testamentary succession in India, and applies to all communities except the Muslims. To
the Hindu it applies with some modifications. As to the other communities such as Christians and
parsis, it apply fully.

Section 5(2) of The Hindu Succession act, 19254 contains a rule of conflict of laws. It states the
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.

The Indian court would not assume jurisdiction to determine succession to the movables of the
deceased who died domiciled elsewhere and left no assets in India. But in case he died leaving
behind assets in India then Indian Courts have jurisdiction to determine the validity of his will
and allied matters relating to the testamentary succession.

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Indian Succession Act , 1925
Conclusion
The common law conflict of laws rules relating to the formal validity of wills are, and have
been for at least two centuries, clearly established. These rules are that the formal validity of a
will of immovables is governed by the lex rei sitae and that the formal validity of a will of
movables is governed by the lex domicilii tempore mortis. Thus, the rules governing the formal
validity of a will at common law are a combination of the lex situs and the personal law of the
deceased testator.

These same rules govern succession to property. The common law rules centre on the dichotomy
between movables and immovables, immovables being land and movables being all things other
than land, including intangibles. This dichotomy must be used in characterizing property dealt
with in a will in order to determine which conflicts rule applies to the case and therefore, in turn,
which law is the competent law to be used in determining the formal validity of the will. The
characterization of the property using the movables and immovables dichotomy must be done
independently of any consideration of personalty or realty.