IHTM20182 - Life Policies: Married Women’s Property Act policies: proper law

The Married Women’s Property Acts of 1870 and 1882 do not extend to Scotland. However by the Married Woman’s Policies of Assurance (Scotland) Act 1880 the facilities introduced by S10 Married Women’s Property Act (MWPA) 1870 for effecting policies for the benefit of married women and children in England and Ireland were extended to Scotland.

In the opinion of the Board’s Legal Advisers ‘a reference in a policy to either the MWPA 1882 or the MWPA (Scotland) Act 1880 is not to be treated as conclusive of the proper law of the policy trusts unless there are other grounds for assuming that the trusts were intended to be regulated by the law of the country whose Act is referred to.’ If there are other relevant factors (for example. the residence of the life assured, the beneficiaries and the trustees) the reference to the Act should be regarded as decisive.

It does not automatically mean that the proper law of the trust is English law, and if the policy refers to the MWPA (Scotland) Act 1880 it does not automatically mean that Scottish law is the proper law of the trust. Other relevant factors need to be taken into account to determine the proper law which applies.

The question of whether the proper law is that of England or Scotland is most likely to be relevant where, if English law applied, the rule in Phipps v Ackers (IHTM20183) would be in point.