ABSTRACT
The general rule is that a person must have capacity to take and transfer immovable property by the lex situs. This proposition is attested to by the cases of Duncan v Lawson57 and Bank of Africa v Cohen,58 although the reasoning in the latter case has not escaped without criticism. In the case of Duncan v Lawson, the facts were as follows: a domiciled Scotsman left freehold and leasehold property in England for charities registered in England. Under English law, such a gift would have been void under the Mortmain and Charitable Uses Act 1888. Two questions arose: (a) whether English law, as the law of the situs, rendered the gift void; and (b) whether English or Scottish law should govern in the event of intestacy.
