That’s right. In Saskatchewan, it depends on whether you’re married and whether you have children, and also on the size of the estate. If you’re married but have no children, then it all goes to the spouse. If you’re married and have children, and the estate is over a certain amount, the intestacy laws divide it up between the surviving spouse and the children. If the estate is under the amount set in the statute, it all goes to the spouse.
That’s fairly common, isn’t it, Northern Piper? I’m recalling some past discussions about intestacy here, and the general thesis seemed to be: Everybody does it differently, but one standard seems to be that if someone dies survived by spouse and child(ren), it’s almost definite that the estate will be divided in some way between them.
For the record, and again no cite: The shortest holographic will was in Czech, and reads in full (ignoring signature) Vse sene, which translates to “Everything to my wife.”
When I was working as a bookies clerk I signed as witness for some amendments my boss’s wife made to her will. Years later after she died, the executor had to come and see me to get a Statutory Declaration that I had signed the codicils because I had not dated my signatures.
Well, this is outside my area, but that’s my general understanding. I haven’t been able to find on-line the Saskatchewan intestacy law that would have applied in 1948, so my earlier answer was based on the current law. If I have time, I may poke around to find it, to give a more definite answer to Dewey Finn’s question.
I took a look. The intestate succession statute was amended in 1996, but the old one gave the first $10K to the spouse and divided the residue between spouse and children (even grown ones)–if there were “issue” (descendants) the split was a little different. http://www.canlii.org/sk/laws/sta/i-13/20040618/whole.html
It’s possible that the guy had a grown child to whom he didn’t want to pass a chunk of his estate.
Yes, but that (now repealed) statute from the RSS 1978 wouldn’t have been in force in 1948. The applicable one would have been in the Revised Statutes of 1940.
It will probably have been the same basic principle, although the amount of $10,000 may have been different back then. Now I’m curious, so will check some time.
Alternatively, one reason for leaving all to the wife would have been to keep the farm intact and trust the wife to look after the kids, if any. But who knows how clearly someone would have been thinking when trapped in that situation. Probably just a basic human instinct: make sure it all goes to the wife, and hope for the best.
No. If State B law applies, then State A is applying State B law. That’s how courts talk about it. You seem to be asking a more metaphysical question that doesn’t have a meaningful answer: is it really State B’s law? Yes and no. The idea is that State A is supposed to look at the law of State B and apply it to the case, but the courts of State A get to decide what State B law really is. State A’s interpretation of State B law might be very different from State A law, and the Supreme Court has said that’s pretty much tough, especially if State A’s law is unclear:
Alaska Statutes: AS 13.06.068. Choice of Law; Validity.
Choice of law - Wikipedia
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ok&vol=/supreme/1958/&invol=1958ok157
There’s probably something in one of the annual summaries found here: http://www.willamette.edu/wucl/wlo/conflicts/ but I don’t have time to look.
Ah, crap. My bad. Sorry.
I agree, and that’s how I would talk about it too. I asked the question in response to missouri65’s statement:
So Missouri65 seemed to be saying that if South Dakota applies North Dakota law pursuant to the statute, then it’s still applying South Dakota law, since South Dakota law supplies the choice of law principles.
That’s very interesting, but did you happen to read Section C of the same statute you quoted?
Not if English law applies: section 9 of the Wills Act 1837
The statute seems to state a general rule, which is what you asked for, and then list some exceptions to the general rule. I’m really not here to write a treatise on choice of law. Most general rules have exceptions.
Right, but if the South Dakota legislature repeals (2) and (3) tomorrow, there’s nothing that those other states can do about it, and a will executed in conformity with the laws of those other states will not be valid in South Dakota unless it also complies with (1).
South Dakota has currently authorised its courts to rely on the law of other states, but the South Dakota courts can only do so by virtue of that South Dakota law. Technically, this is often called “incorporation by reference” - South Dakota has incorporated the law of those other states into South Dakota law by referring to those other laws in the South Dakota statute, and those other laws do not apply of their own force. Since they only have significance in South Dakota because of the South Dakota statute, it’s more appropriate to say that the validity of a will submittted for probate in South Dakota is decided entirely by South Dakota law, which in this instance has incorporated certain principles of law from other jurisdictions.
But in this case, the exceptions are directly applicable to the situation being discussed and contradict the “general rule.”
By analogy, if somebody asked a legal question about a workplace injury, it would be inaccurate to tell them that workplace injuries are governed by the law of negligence.
Nice analogy, but your question was:
It wasn’t, “is there an exception that might apply in this specific case.”
I’ve provided citations for the proposition that the general rule described in you question. I’ve also provided plenty of additional information from which you can determine whether an exception might or might not apply. So I guess my question is why are we still arguing about it? It’s a rhetorical question though, because I’m about to go out for a while.
Thank you.
You are right – it wasn’t.
Not exactly. You provided a cite for a broader proposition. (Which happens to have an exception for the exact situation under discussion!)
As I mentioned earlier, it’s just like a situation where the law of a workplace injury is being discussed and somebody claims that under the general rule, the injured worker must demonstrate negligence on the part of his or her employer. And cites a general case on negligence to support his or her proposition.
I just typed up a really long and drawn out response trying to explain my position, brazil84, but I lost it, so this one will be much shorter.
Basically, I only mentioned it because it was a sticking point for my Conflicts professor. It in all likelihood is a distinction without a difference.
I think I misrepresented myself with that last sentence in my first paragraph. I’m sorry; it was neither clear nor accurate. I would not say the same thing about other choice of law statutes. These particular statutes did not resolve an existing choice of law issue. They simply added to the body of law that they will consider in determining validity. They don’t say, “Apply the law of the state where executed.” They say if the will is valid according to their own requirements, it’s valid. But even if it’s not, it will still be valid if it was valid where executed, etc.
BTW, your cite doesn’t provide the actual text of the South Dakota statute. It’s available here: Loading... | South Dakota Legislature The actual text shows that South Dakota also looks at its own statutes regarding execution.
After your response to Gfactor, I’m even less clear on what you want a cite for.
No, it’s like somebody saying “what’s the general rule on liability for injuries?” And then when someone says, you’ve got to prove negligence, you say, “not in the case of workplace injuries,” (a specific exception), as if that disproves the general rule. At any rate, I’m kind of busy, and I’ve said what I’m going to say on the subject. I don’t plan on returning to this thread as a poster.
So what? If a state applies another state’s law, most people would say that the state is applying the other state’s law.
If that’s so, it again refutes your apparent contention that the law of the state of domicile is what applies. For example, if the domicile is not the same as the forum.
I would like a cite for the general rule you propose that a will’s validity is determined by the law of the domicile of the testator.
But at this point, a cite won’t be necessary – because it’s becoming clear that in many, if not most jurisdictions, your claim is inaccurate.
No you’re wrong. We were specifically discussing validity of wills - in particular holographic wills.
Here’s what I said that started all this:
That was analogous to asking what the law is for workplace injuries.
And here was one of the responses:
This was analogous to making a statement about the general rules of negligence.
Brazil84, I’m not disagreeing with you that the court may ultimately apply the law of the state of execution–I’m merely asserting that that does not alter the rule that it is the law of the situs or domicile that governs.
As I said, it isn’t really an important distinction as long as these statutes are in force (and I don’t see them being repealed anytime soon). Basically, my cite for that distinction is my Conflicts prof, who has been teaching in the areas of both Conflicts and Estates for more than 40 years. (I know that doesn’t help you at all, but I trust him.) I only brought up the distinction because you seem to be arguing that the statutes refute the general rule. My position, and that of my professor, is that the general rule stands, but the states have elected to also accept as valid wills that would be valid where executed. You seem to be saying that the existence of these statutes makes the traditional rule no longer true.
As for a cite to the general rule: Dukeminier, Johanson, Lindgren and Sitkoff, Wills, Trusts, and Estates page 215
I’m still not sure if that is what you’re asking for. I am really not following your analogies here.
I’m sorry, but I’m going to be off the boards for the next week or two, so this will probably have to stand as my last post to this thread. I don’t really think I have that much more to say anyway. Our disagreement may simply be one of semantics. Either way, I don’t really think we’re going to get anywhere with it, so at this point, it may be best to agree to disagree.
Not necessarily. If the testator is domiciled in State X, and executes a will in State Y, and the will is probated in State Z, and State Z holds the will is valid because it is valid under State Y’s law, it’s pretty clear that the law of the testator’s domicile is not what is governing. Most people would say that the law of State Y is being applied. Under your view, the law of State Z is being applied. But the law of State X - the domicile – is not being applied.
I don’t know what distinction you are referring to.
At a minimum that’s what I’m saying. By analogy, the traditional rule is that an employee who is injured on the job must show (at least) negligence on the part of the employer to recover. However, the existence of statutes makes this traditional rule no longer true.
Would you mind quoting the applicable passage?
I’m not asking you for anything anymore. It’s become pretty clear that you were wrong.