Category Archives: wills

Archival Amour

It’s not quite the season of compulsory romance, but Valentine’s Day, and, for those lucky enough to be Welsh, the problematic Dydd Santes Dwynwen (Jan 25th – none of your Burns Night here, thank you very much)[i] will soon be upon us. There is, therefore, half an excuse to write about the online National Archives online exhibition about documents relating to love, which can be found at  With Love – The National Archives

It includes:

  • one of Ramsay Macdonald’s love letters (nice handwriting, no obv. LH content, though suggestion of fantasies of husbandly chastisement – rather questionable);
  • one of Robert Dudley’s letters to Elizabeth I (scratchy-quilled Early Modern writing, bit grovelling tbh, and no LH);
  • a letter of 1851 by a man called Daniel Rush, to the Poor Law Board (Law! Here we go! An absolute corker – commentary on the cruelty of those administering the law, and also citing the 1847 Consolidated General Order, ruling that there is no requirement to separate ‘pauper’ married couples to put them into the workhouse – really interesting on ‘lay’ knowledge of the law);
  • the Instrument of Abdication of Edward VIII (constitutional law, I suppose, but, oh, what appalling people);
  • a 1966 letter by Harry Houghton to Ethel Gee (perhaps ignorantly, I had not heard of these two – they were found to be Soviet spies, part of the Portland Spy Ring. This was a very kind letter consoling Ethel when her mother died, written from prison).
  • a 1541 letter from Catherine Howard to Thomas Culpeper (obvious LH link – treason charge etc. It signs off with ‘Yours as long as life endures’ – not that long, as it turned out.)
  • two anonymous letters from the 1740s (seeking ‘Romantick happiness’; an argument as to where this lies, with a particular woman or with L.H. – clearly, to my mind, not another woman but Legal History!)
  • a love letter from the 1930s, from Cyril to Morris, from (LH!) a period when homosexual relationships were likely to fall foul of the law (awkward and intense and very English)
  • a love song from the later 15th C or 16th C (The song itself doesn’t do anything for me, other than making me hum ‘Alone’ by Heart under my breath, but it’s apparently on the back of a document about a riot which – LH – would float my boat rather more)
  •  a letter from James Gillespie to the Prime Minister, Lloyd George, from 1919 (terrible circumstances – following race riots in South Wales – this black resident of Barry wanted to leave, but not without the family he had started there).
  • Wills – obvious LH interest just in the nature of the documents. We have Anne Lister’s will (1841) (She of ‘Gentleman Jack’ fame –interesting bit about provision disappearing if Ann Walker should marry – but some such idea was often present in provision for ‘widows’, certainly in local jurisdictions) and Nelson’s will (1803).

 

A very nice idea, and well presented. Sadly, I must report that it is inflaming rather than soothing my own particular pining – for the archives themselves. Very much looking forward to The After Times when I can get my hands on some MSS once again.

[i] All is explained here: How St Dwynwen wrongly became known as the Welsh Valentine… – Blog Ysgol y Gymraeg / School of Welsh blog – Cardiff University

Matters Testamentary: first thoughts on Law Commission Consultation Paper 231, Making a Will

I have just got through the very wide-ranging Law Com Consultation Paper on wills: a huge project, dealing with a important area which needs reform, though perhaps not something which is going to be at the top of T. May’s ‘to do’ list just at the moment.

There are some interesting developments in the ways in which the Law Commission is making its consultations available. Alongside the usual formal document and English summary (still pretty long!), I was pleased to see a prominent  summary in Welsh (Hwre!)  and also the well-thought-out ‘Easy Reading’ version. On this subject in particular, it seems important to get the views of people who would struggle with the usual academic/legal presentation. I do also love the infographics: these seem to have appeared quite recently in Law Com publications. But there is only so far you can go, and ademption and fraudulent calumny would not be easy to illustrate. In the end, this is a pretty involved area, and I suspect that most of the respondents to much of the consultation will be academics and/or lawyers.

Given the complex nature of the subject matter, the main document does a good job of setting out the areas which might be changed or questioned, as clearly and succinctly as possible. It is, however, rather too quick to assume that testamentary freedom is of overriding importance to a large majority of people (see, e.g. 1.12). If press reactions to the recent Ilott case show us anything, it is that ideas about personal responsibility for family members and dependents, and wider responsibility to society are also important to many of us. The extent to which rights over property should outlive us, allowing our dead hands to retain some grasp over assets which were ours in life, is and should be a matter for debate. Attention to the history of all of this demonstrates that English common law’s championing of testamentary freedom is relatively recent and has, at almost all times, been subject to limitations.

There is plenty which is picturesque in the language of succession law(e.g. I’ve always liked the idea that a will is ‘ambulatory’ – picture a formal document wandering around the place) and plenty which seems amusing about wills written on eggshells, and the many and various ways in which people can get things wrong, but there are also worrying cases, particularly those regarding vulnerable testators and the possibility of their being pressurised or tricked into making their wills in particular ways.  The paper makes some interesting suggestions about how to try and enable vulnerable people to make wills, while guarding against dubious behaviour on the part of those around them. In doing so, it has to deal with the messy state of play surrounding pleas of’undue influence’ and ‘lack of knowledge and approval’. The idea of some sort of support scheme for people whose capacity is diminished but not wholly absent, allowing them to make a will, seems humane and in line with international obligations, but whether this should be in any way state funded is much more difficult. Where should enabling those with assets to leave to depart from intestacy rules lie on a list of priorities which includes much more basic medical and social care needs? In addition, the gentle suggestion that medical and care staff should not be discouraged by their institutional policies from becoming involved in the will-making of their patients (1.33) seems to me to be questionable. Is facilitating ‘testamentary freedom’ really part of the appropriate role of these people and institutions, so that they should involve themselves in will-making, and the attendant risk of future litigation over the will of a patient, rather than looking after other patients who do not have assets to distribute? That would seem to be transforming this ‘freedom’ to a right – and one which trumps various, more basic and universally accepted, rights of others.

The paper has a go at the implications and opportunities of computing and the internet. Yes, Land Lawyers – shudder with me at the echoes of ‘e-conveyancing’- there are suggestions concerning the possibility of  e[lectronic] wills. The lessons of e-conveyancing seem to have been learned, though, and there is no great fanfare about this, just some discussion of the possibilities and difficulties and the suggestion of an enabling provision to deal with this as and when the technical difficulties are cleared up. So despite the Mirror’s excitement (http://www.mirror.co.uk/money/if-die-you-can-xbox-10796411 ), it is probably unlikely that we are about to see wills made by drunken text message.There is also some work on various electronic property or ‘property-adjacent’ things. I do look forward to seeing hardcore property lawyers getting into debates about rights to characters in online games [though perhaps they would enjoy ‘In the Toils of a Harlot’: the online undue influence game].

At times, reading this made me wonder about the role and process of consultation. On the one hand, too great a role seems to be given to those who choose to reply: thus, some of the consultation questions look as if they would be better answered by a solid empirical study, rather than by way of a question thrown out to all who wish to involve themselves – e.g. q 2 about experiences of the impact of making wills and disputes over wills after T’s death. Wouldn’t we get a more solid answer if there was actually a proper survey on this? On the other hand, those who choose to respond to the consultation may feel that they are regarded as being less important than those already sought out for ‘pre-consultation’ and labelled ‘stakeholders’. I am not fond of this word in any case, except in a gambling context or in relation to Buffy the Vampire Slayer. It’s an unthinking borrowing from corporate-speak of the worst kind, and it needs to stop. Leaving that aside, calling some people ‘stakeholders’ appears to me to give prominence to certain individuals or groups over the public at large. In this context, I am not sure that anyone should be regarded as having more of a ‘stake’ than anyone else: this law applies to all of us. As with the totemisation of testatory freedom, it plays down the impact on the public of changes to private law. It may well be sensible to talk to particular individuals and groups before writing a consultation document, but that is more to do with their particular expertise than their ‘stake’. Of course, we don’t like using the ‘e-word’ these days, do we?

GS 15/07/2017

A case of snow

A trawl for appropriately chilly cases brought in one interesting nineteenth century dispute. Ommaney v Stilwell (1856) was a Chancery case concerning a will and the question of which of two men – Edward Couch and Captain James Couch, his father, had lived longest.

Edward was mate of the Erebus, sailing off from England in 1845 with the ill-fated expedition of Sir John Franklin to the Arctic. He made a will in 1845 leaving everything to his father. Edward was not heard of after June 1845, and, by 1856, it was assumed that he had died, with all of his fellow-explorers. Captain James Couch died in January 1850 – but should it be presumed that Edward had died before that point?

The case considered evidence of the man who went looking for Franklin’s expedition in 1853-4, Dr Rae, who gives a fascinating – and very snowy – account of his efforts.
He had traded with ‘Esquimaux’, acquiring several objects formerly belonging to men on the Franklin expedition, and being told that, in April-May 1850, the ‘Esquimaux’ had met a party of starving foreigners who said their ship had been crushed by the ice, but that in 1853, they had found the bodies of several of these men. Evidence of goose-shooting fixed the time of the demise of the party at May-June 1850. There was no mention of the apparent cannibalism Rae found from the state of the bodies.
The original expedition included around 130 men, but the party encountered alive then dead in 1850 was only around 40.

Sir John Romilly, the Master of the Rolls, exclaimed at the difficulty of the case. He made a decision, in the end, on the basis of likelihood of a strong young man surviving his father (as in the commorientes rule which still prevails under the Law of Property Act 1925). I am not sure that I would bet on someone on a doomed Arctic expedition having survived a home-based person, however old.