Validity of Wills, Deeds and Contracts as Regards Form in the Conflict of Laws

Abstract

Is a will complying with the requirements of form where made to be regarded as valid in other places? This was a mooted question in Italy during the fourteenth century. Through the great influence of Bartolus, the founder of the science of Private International Law, the doctrine that such a will was sufficient, regardless of the domicile of the' testator or the nature of the property disposed of, became the established view in Italy, from which there has never since been a departure. This doctrine met with strong opposition in northern France, the stronghold of feudalism, where the principle of the absolute territoriality of the law ("toutes coutumes sont reelles'') was firmly fixed. It was not until the weakening of feudalism that, notwithstanding the opposition of d'Argentre, the doctrine of Bartolus was accepted in France through the powerful support which it received from Dumoulin. D'Argentre's followers in Belgium succeeded in restoring the supremacy of the law of the situs with respect to immovables through the Edict of Albert and Isabella of 1611. This triumph, ·however, was only of short duration. for the traditional rule was re-established in 1634, when the Privy Council of the Belgian Provinces, yielding no doubt to public opinion, held, contrary to the express wording of the Edict, that a will relating to immovables in Italy, executed at Brussels in the local form, was valid though it did not meet the requirements of Italian law. No other attempt was made to question the rule. ·Since the end of the eighteenth century it has prevailed in Holland and Germany as well as in Italy, France and Belgium.·