PRIVILEGED WILLS : A TIMELY REMINDER
Christopher Parker takes an in-depth look at the history of privileged wills and also reviews
application of the law by C20th courts
(taken from Issue No 21 – October 2002
On the day that this article is being composed, coincidentally the sixty-third anniversary of the outbreak of the Second World War, there is a headline in `The Times` that reads: `Families fearing war bid Ark Royal sailors farewell….`,with a picture showing the Aircraft Carrier leaving port, and underneath a caption that reads: `Bound for conflict: HMS Ark Royal sails for an exercise in the Mediterranean that could be extended if there is action in Middle East`
Although it is now many years since the end of the last great war, the occasions upon which our Armed Forces have been called upon to engage in actual military service, whether on land, at sea or in the air, and whether at home or abroad, since that time have been numerous – a price which has to be paid in order to maintain a relative general peace in the world. These occasions have included participation in minor wars, whether on behalf of our own national interest as subjects of the United Kingdom, such as in the Falklands War, or as part of an allied coalition acting on behalf of multi-national interests authorised by the United Nations, such as in the Gulf War. On other occasions, active service has involved operations such as military occupation following the cessation of hostilities as in the British Army on the Rhine, supporting the lawful government in combating rebellion or insurgency as in Malaysia and Northern Ireland, or in countering unconventional forms of offensive action such as the recent emergence of the so called global terrorism, resulting in operations in Afghanistan. On most of these occasions members of our Armed Forces have been at risk of sudden death and so circumstanced by time and place that they do not necessarily have the luxury enjoyed by the rest of us of ensuring that their testamentary intentions are properly set out in a will which complies with the formal requirements of the Wills Act 1837.
With the recent deployment of our Armed Forces to Afghanistan, and mindful of the numerous other places throughout the world where they have been, are presently or may shortly be deployed, in which they will encounter the threat of armed conflict, it seems an opportune time to review the continuing availability of that privilege, not accorded to the rest of us, which enables members of our Armed Forces who are on actual military service, as well as any mariner or seaman being at sea, to declare his or her testamentary intentions in a form that does not need to observe the usual formalities.
It is, of course, an open question as to whether or not a soldier or sailor, in this day and age, would be content to rely upon the vagaries of the privilege, if he or she thought about it with such professional legal advice as should be available to him or her, free of charge, within the Armed Forces. Although it may be comforting to know that the privilege continues to be available to soldiers, whilst in actual military service, and to sailors whilst at sea, an examination of the case law is not exactly reassuring. For example, In the Estate of Rippon1 Pilcher, J. said
`In my opinion, whether or not a soldier is `in actual military service` so as to enable him to make a privileged will, must depend upon the facts of each case and the circumstances which exist at the time`,
and In the Estate of Newland2, after considering the authorities on the meaning of `mariner or seaman being at sea`, as well as those concerning a soldier being in actual military service, Havers J. said
`I have examined the various authorities which have been cited to me to see whether I could extract from them some principle of universal application, but I have been unable to find such a principle`.
Whilst the continuing availability of the privilege may no doubt be beneficial in those cases, for example, where a young and inexperienced soldier without a formal will, faced with the prospect of sudden death, wishes to make a testamentary disposition – or perhaps an older, more mature, soldier with an existing formal will, faced by the same prospect, wishes to make an amendment to his testamentary dispositions – there are problems. Suppose a young soldier is mortally wounded and, whilst still in shock, and perhaps with only a few hours to live, he tells his officer and sergeant that in the event of his death, he wants all his property to pass to his girlfriend (cf. the facts of Re Jones (deceased)3 infra). In those extreme circumstances surely it must be doubted whether that soldier has satisfied the familiar tests required for testamentary capacity as formulated by Cockbum, CL in Banks -v- Goodfellow4 not least because he could scarcely have had the time, unless his circumstances were meagre and his loved ones few, to recollect what property he needs to dispose of and reflect on the persons who are the objects of his bounty, and the manner in which that property is to be distributed between those persons. Apart from the question of testamentary capacity, another problem is what construction should be placed on the words the dying soldier uttered – if, by chance, he owned real as well as personal estate, what did he mean when he said that he wanted his property to pass to his girlfriend? In particular, did he intend his `property` to include all of his estate, both real and personal, or only his personal estate, or perhaps only the personal effects which were with him at the time he died?
As interesting as these questions are, it is not the object of this article to discuss whether or not the continuing availability of the privilege is justified, but merely to restate the existing rules and trace the development of the privilege, with particular regard to the meaning of the expressions `in actual military service` and `at sea`.
Extent of the Privilege
At common law there were no formalities for the making of a will disposing of personal estate. The Statute of Frauds 1677 changed this if the personal estate was worth more than £30. Thereafter, except for the testamentary dispositions of soldiers in actual military service and sailors at sea, a will had either to be in writing or, if oral, had to be made in the presence of three witnesses and put into writing within six days of its making. No doubt, it was considered appropriate to grant soldiers in actual military service and sailors at sea an exemption from the necessity of observing the new statutory formalities because, by the very nature of their occupations, whilst acting in those capacities, they would be at risk of sudden death and, being separated for long periods from the opportunity of taking legal advice, they were at an additional risk of having their testamentary intentions frustrated through ignorance of the law (as well as, in all probability, illiteracy).
Subsequently, just as the original provision contained in the Statute of Frauds 1677, which first imposed formalities for testamentary dispositions of personal estate, was re-enacted in the form of s.9 Wills Act 1837, so too the original provision which first conferred the privilege for soldiers in actual military service and sailors at sea was re-enacted – in almost identical terms – and is now set out in s.11 Wills Act 1837, as follows:-
`Provided always, that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act`.
For this purpose, `personal estate` extends to leasehold estates and other chattels real, monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein5. At the end of the Great War, the privilege was broadened to allow soldiers and sailors to dispose of their real estate6, which was defined as extending to manors, advowsons, messuages, lands, tithes, rents and hereditaments, whether corporeal, incorporeal, personal, and to any undivided share thereof, and to any estate, right or interest (other than a chattel interest) therein.7
Thus, the privilege may now be claimed to dispose of any type of property, whether real or personal – including realty over which there is a power of appointment8. It may also be used to appoint any person as a testamentary guardians9.
Whilst it was natural to expect members of the Royal Navy, and the Royal Marines, to be at sea, it not infrequently occurs during warfare that members of both maritime services are obliged to conduct military operations on shore as if they were soldiers in actual military service and, with this in mind, the privilege was extended to cover those members acting in that capacity, as follows:-
`Section eleven of the Wills Act 1837 shall extend to any member of His Majesty’s naval or marine forces not only when he is at sea but also when he is so circumstanced that if he were a soldier he would be in actual military service within the meaning of that section`10.
However, there is an important difference between s.11 Wills Act 1837 and s.2 Wills (Soldiers and Sailors) Act 1918; namely, that a member of the Merchant Navy is a `mariner or seaman` within the meaning of the former but not a member of `His Majesty’s naval or marine forces` within the meaning of the latter.
Finally, as the Great War saw the emergence of what in 1918 became the Royal Air Force, it was only to be expected that those members should be entitled to claim the privilege on the same basis as other members of the Armed Forces, and for this it was provided that the expression `soldier` includes a member of the Air Force.11
Thus, all members of the Armed Forces, whether of the Royal Navy (and Royal Marines), being at sea or so circumstances as if they were soldiers in actual military service, or of the Army and Royal Air Force being in actual military service, can claim the privilege. In addition, as has already been noted, a more limited privilege may be claimed by members of the Merchant Navy and other sailors at sea. All commissioned officers and other ranks, whether male or female, are included. Typical examples are
- the Mate of HMS Calliope (In the Goods of Lay12),
- a lady typist employed by Cunard on SS Lusitania (In the Goods of Hale13),
- a lady nurse engaged by the Queen Alexandra Imperial Nursing Service (In the Estate of Stanley14),
- the Chief Officer of the Merchant Fleet employed by Anglo-Saxon Petroleum (In the Estate of Wilson15),
- the Cook to the Governor of Saint Helena (Shearman v Pyke16 cited inDrummond v Parish17),
- an officer of the 8th Regiment Bengal Cavalry (In the Goods of Tweedale18),
- an officer of the 6th Punjab Infantry (Re Limond, Limond v Cunliffe19),
- an officer of the Home Guard (In the Estate of Anderson20 read in the light of Blyth v Lord Advocate21),
- a Major in the Territorial Army (In the Estate of Rippon22),
- a Squadron Officer of the Women’s Auxiliary Air Force (In the Estate of Rowson23) and
- a pilot instructor of the Royal Air Force (Re Wingham, Andrews v Wingham24).
Form of privileged wills
With regard to the form taken by testamentary dispositions made by soldiers in actual military service, and by sailors being at sea, the privilege has been used to save all forms of wills and codicils which would otherwise be formally invalid because they were not in writing, or not signed by the testator/testatrix, or not attested by two witnesses (or any combination of these25), or were made whilst the testator/testatrix was a minor under 18 (formerly 21) years of age26. Thus, valid testamentary dispositions have included
- completely oral wills as in Re Stable, Dalrymple v Campbell27 (`If I stop a bullet, everything of mine will be yours`),
- a hand written letter such as in Gattward v Knee28 (testamentary dispositions contained in a letter written by a soldier stationed at Calcutta to a friend in South Africa),
- instructions for the preparation of a formal will such as In the Estate of Rowson29 (where the testatrix sent instructions to her solicitors, who prepared a draft but which was not executed),
- written but unattested wills such as in Re Wingham, Andrews v Wingham30(where the testator wrote out what he described as a will, signed it, but did not get it attested),
- written but imperfectly attested wills such as In the Estate of Rippon31(where the testator wrote his will and signed in the presence of only one witness) and
- in former times, when members of the Armed Forces were routinely issued with a pay book, there was a space on the last page in which to express any wishes as to testamentary dispositions in the event of death; cf. In the Goods of Spicer32.
Proving a privileged will
With regard to the practical aspects of proving a privileged will, an affidavit is ordinarily required, showing that at the date of execution the testator/testatrix was either in actual military service or at sea (as the case may be), and stating on what circumstances the applicant relies as constituting the document a privileged will. Besides proving the last domicile of the deceased, the applicant must show, in the case of a written testamentary disposition, that the document bore the signature of the testator/testatrix or, if it was unsigned, that it was in his or her handwriting.33
Alternatively, if the document was signed by a mark, the applicant must prove that the testator/testatrix had knowledge of the contents. Moreover, as the terms of a privileged will are to be established to the satisfaction of the Registrar34, any alterations or interlineations made by the testator/testatrix, if unattested, must be proved by evidence as to his or her handwriting or, if they are in the handwriting of another person, it must be proved that they were known to and approved of by the testator/testatrix. In the case of a nuncupative will, which is, according to Swinburne,
`when the testator without any writing doth declare his will before a sufficient number of witnesses`35,
the application is required to be made, in the first instance, ex parte to the Registrar, supported by affidavit evidence of the facts and the consents of all persons prejudiced who are sui juris36. The oral statement made by the deceased should be committed to writing and exhibited to the affidavit. The Registrar, if he thinks fit, may direct that the application be made by summons to a registrar or judge in chambers or open court. When the order is obtained, the affidavit(s) and the statement in writing are filed with the application for the grant, with the statement in writing being subsequently marked as the will by the deponent to the oath and by the Solicitor/Commissioner for Oaths.
Comparison with Wills Act 1837
Having now considered the extent of the privilege with respect to property, persons and form, it only remains to be seen to what extent the privilege overrides, or is overridden by, other apparently conflicting provisions in the Wills Act 1837. Firstly, bearing in mind that soldiers in actual military service have included drummer boys, and sailors being at sea have included powder monkeys, there is the case of a privileged will made by a minor under 18 years of age, to which reference has already been made above. Apart from authority, one would have thought the privilege would extend to cover such a will even though it was made by a person under the age of 18 years – at common law a will could be made by a male at 14 years and by a female at 12 years of age. However, s.7 Wills Act 1837 (as amended by the Family Reform Act 1969) provides that no will made by any person under the age of 18 years shall be valid, and in Re Wernher, Wernher v Beit37 whilst the age of majority was still 21 years, doubts were expressed by Younger, J. as to whether the legislature intended s.11 to overrides.7 Wills Act 1837 so as to allow a minor to make a privileged will. In the event, before the case could reach the Court of Appeal, ss.1 & 3 Wills (Soldiers and Sailors) Act 1918 were enacted to authorise the making of privileged wills in respect of personal and real estate respectively, even though the person making the disposition was at the time of making it under the age of majority38. Curiously, if the minor ceases to be a soldier in actual military service, or a sailor being at sea, before he reaches his or her majority, he or she cannot make a new will in accordance with s.9 Wills Act 1837 until he or she reaches his or her majority, yet he or she can revoke his or her privileged will before reaching his or her majority. Secondly, as is well known, a testamentary gift to an attesting witness (or his/her spouse) is made null and void39, but this does not override the privilege where the soldier’s will is attested, and the gift is to an attesting witness; see Re Limond, Limond v Cunliffe40. Thirdly, it is provided by s.20 Wills Act 1837 that no will or codicil can be revoked, inter alia, other than by another will or codicil
`executed in the manner herein before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a Will is herein before required to be executed`,
yet it was held In the Estate of Gossage, Wood v Gossage41 that as no formalities were required for the execution of a soldier’s will, none were required for its revocation (even if that earlier will was executed in accordance with s.9 Wills Act 1837).
Similarly, it is provided42 that no obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect
`unless such alteration shall be executed in like manner as herein before is required for the execution of the Will`,
yet it was held In the Goods of Tweedale43 that where a will in the testator’s handwriting contains material alterations, about the making of which no information could be obtained, and such will was signed by the testator whilst as a soldier employed in actual military service, the alterations would be presumed to have been made during the continuance of such military service. However,s.18 Wills Act 1837 which provides that, subject certain exceptions, every will made by a testator or testatrix shall be revoked by his or her subsequent marriage, has the same effect in relation to a privileged will as it does to a formal will; see Re Wardrop’s Estate44. Thus, to summarise, whilst s.11 may be said to override ss.7, 15, 20 & 21, it does not override s.18 Wills Act 1837.
Finally, no comment on the extent of the privilege would be complete without a mention of the unassuming, if remarkable, point that privileged wills, like formal wills, do remain valid after their execution indefinitely. Unlike privileged wills in Roman law, privileged wills under s.11 Wills Act 1837 are not subject to any limitation of time as to their validity; see Re Booth, Booth v Booth45.
As will be apparent from what has been said above as to the extent of the privilege, what matters more than form is the intention of the testator or testatrix to make a testamentary disposition. The testamentary act does not have to take the form of an instrument or be attended by any particular formalities. Indeed, it has been held that testator/testatrix does not need to know that he or she is making a privileged will, or even that he or she was capable of making it – particularly in the case of a nuncupative will; see Re Stable, Dalrymple v Campbell46. However, although a testamentary act need not be recognised by the testator or testatrix to be the making of a privileged will, he or she must intend that act to operate so far as is possible as a testamentary disposition on his or her death; see In the Estate of Beech47. It is not enough if, when the deceased makes an informal statement, he or she is only summarising an existing testamentary disposition which has already been made, or which was believed to have been made, and the same applies if it is a statement of intent as to a testamentary disposition which he or she intends to make in the future (unless, perhaps, it is clear from the terms thereof that he or she merely intended to make a formal will to replace the informal testamentary disposition which he or she has just made). For example, in Re the Estate of Donner48 it was held that the deceased’s discussion with a friend as to the reasons why he was not making a will – because he believed that his mother would take everything by the operation of the rules on intestacy – did not amount to a testamentary act. On the other hand, In the Estate of Rowson49 mere instructions for the preparation of a formal will were accepted as a privileged will, even though it is unlikely that the testatrix intended those instructions to amount to a testamentary act.
In such cases as these, and In the Goods of Spicer50 where a soldier on the last day of his leave before going abroad on active service told his mistress and her friend that he wished everything to belong to the mistress if anything happened to him, it seems that the Court will strive to apply a liberal, benign, construction on the words used by the deceased, and draw the inference that he or she intended those words to be remembered as a record of his or her intentions so as to form a guide in carrying out his or her wishes in the event of death.
The most recent example, where a claim failed on the account of the absence of a testamentary intention, appears to be In the Estate of Knibbs51 where a barman on board the SS Arcadia sailing between England and Australia had a couple of conversations during the course of two separate voyages with fellow employees about their family affairs after the closing of the bar. During the course of these conversations, the deceased uttered words to the effect that
`If anything ever happens to me, Iris [his sister] will get anything 1 have got`,
and after the unexpected death of the deceased his sister sought to prove those words as a privileged will. Wrangham, J. was not satisfied that the deceased intended the words which he had uttered to amount to a testamentary act. Although the deceased may have formed the intention that his sister should have all his property, the words which were spoken during the course of a casual conversation and were not intended to amount to a testamentary act in the sense of being remembered and acted on as to the disposition of his property.
Actual Military Service
As has already been noted above, the existence of the privilege in favour of soldiers and sailors dates back to the Statute of Frauds 1677 which first imposed formalities for the making of a valid will. According to Lord Denning, it was Sir Leoline Jenkins who succeeded in obtaining the privilege, which exempted soldiers in actual military service, and sailors being at sea, from observing the statutory formalities when disposing of their personal estate. At that time, with the memory of the Civil War still fresh, and the fear of foreign war ever present, it is said that the legislators took the idea of this privilege from the concept of Roman law which permitted a legionary to make a testamentary disposition whilst in expeditione because he was inops concilii.
A good example of the Roman concept of a privileged will is described inPlutarch’s Life of Gaius Marcius (Coriolanus). Thus, we read that after Corioli was stormed during the Volscian War, Marcius hurried up to join the Roman Army under the consul Cominius which was then preparing for battle with the Volscian Army. When Marcius arrived, he found Cominius’s soldiers making privileged wills. According to Plutarch, it was a custom amongst the Romans in those days, when they were on the point of going into action and were preparing to gird up their tunics and take their shields in their hands, to make at the same time an unwritten will naming their heirs in the presence of three or four witnesses. Plutarch gives no further detail, but his account is an illustration of what was meant by the expression `in expeditone`. In other words, actual military service was considered to be limited to a soldier who was part of an expeditionary force, carrying out actual military operations in the field, while at war, because he was cut off from the usual means of obtaining legal advice.
The provision in the Statute of Frauds 1677 was re-enacted in almost identical terms by the Wills Act 1837 and the influence of Roman law on the meaning of the words ‘actual military service’ continued to persist. Indeed, the early case ofDrummond v Parish52 was for many years considered to be the leading authority on the extent of the privilege afforded to soldiers in actual military service. Sir Herbert Jenner Fust in the Prerogative Court of Canterbury decided that the words ‘actual military service’ confined the privilege to those soldiers who were `on an expedition` and, by way of authority, cited Swinburne53, which drew a distinction between what may be described as active and passive military service in the following terms:-
`……………… they be such as lie safely in some castle, or place of defence, or besieged by the enemy, only in readiness to be employed in case of invasion or rebellion, and then they do not enjoy these military privileges,……………… or else they be such as are in expedition or actual service of wars, and such are privileged, at least during the time o their expedition, whether they be f employed by land or by water, and whether they be horseman or footmen`
Thus, it was held in White v Repton54 that a soldier who was stationed in barracks during peace time was not entitled to the privilege because he could have had the same legal assistance as a civilian. Nevertheless as the British Empire expanded in the century following the successful conclusion of the Napoleonic Wars, modest steps were taken by the Courts to extend the limits of the privilege as the nature of military operations changed. For example, In the Goods of Hiscock55 a private soldier volunteered for service in South Africa during the Boer War and, whilst still under the age of 21 years, made a will in barracks prior to receiving orders to embark with the expeditionary force. It was clear at the time he made his will that the soldier was not on an expedition, but Sir Francis Jeune pronounced for the will on the ground that, at the time when he made it, the soldier had taken a step, albeit small in point both of time and locality or distance, towards joining the forces in the field. Shortly after this decision, the privilege was extended a little further in Gattward v Knee56 where the soldier in question, who wrote a letter from his station in Calcutta to a friend in South Africa making certain testamentary dispositions, had been warned for service and ordered to mobilise for active of service. In that case, Sir Francis Jeune considered that mobilisation could be fairly taken to be the commencement of that which in Roman law was expressed by the words `in expeditione`.
Although, in most cases, a state of war had to be in existence, with which the soldier was connected, it was by no means necessary for there to have been a formal declaration of war. In Re Limond, Limond v Cunliffe57 an officer of the 6th Punjab Infantry was held entitled to make a privileged will, even though it was made some two months after military operations had ceased during a frontier dispute in Waziristan. Similarly, In the Estate of Rippon58 a Major of the Territorial Army received orders on 25th August 1939 to rejoin his battery at Lee in Kent; that is nine days before the declaration of war (3rd September), and eight days before general mobilisation (2nd September). Having received orders to rejoin his battery but before leaving home, the deceased wrote a will which did not comply with the formalities required by s.9 Wills Act 1837 because, though it was signed by the testator, it was only witnessed by his sister. Nevertheless, it was held that the testator was entitled to make a privileged will, having regard to the fact that the order to rejoin the battery was given pursuant to a direction by the Secretary of State for War,
`being satisfied that the service of officers and men of the Territorial Army… is urgently required for ensuring preparedness for the defence of the realm against external danger`.
Attributing to the words `in actual military service` their ordinary natural meaning within the context of the changing nature of warfare Pilcher, J. had little hesitation in concluding that an officer in command of a battery who was ordered to rejoin his batter immediately, because the competent military authority considered that his presence was urgently required to ensure preparedness against aerial attack or invasion, was in actual military service.
Modern cases on `actual military service`
The leading modem case on the meaning of the expression `actual military service`, made in the aftermath of the Second World War, is the Court of Appeal decision in Re Wingham, Andrews v Wingham59. In that case, the previous tendency of the Courts to equate a soldier’s military testamentary privilege in English law with a legionary’s testamentary privilege under Roman law was fundamentally discredited and Denning, LL added that it would be a great mistake to confound the reasons for the existence of the privilege with the rules of the privilege itself, so as to argue that a soldier who was not in danger or who had legal advice at his elbow could not make a privileged will. The facts of the case were that after joining the Royal Air Force, the deceased was sent overseas to Canada for training in operational duties, and whilst overseas wrote out a Will which he signed but did not get attested. Subsequently, the deceased became a pilot instructor and died from injuries received as a result of an aircraft accident. At first instance, it was held that the deceased was not entitled to make a privileged will because his despatch to Canada, far removed from the fighting zones, was designed to enable him to pursue his training in an area which was not subject to hostile interference or attack. The Court of Appeal reversed this interpretation of the words `actual military service`, but for different reasons. Bucknill and Cohen, UJ. were of the view that the tests were:-60
`(a) Was the testator `on military service`; (b) was such service `active`? In my opinion, the adjective `active` in this connection confines military service to such service as is directly concerned with operations in a war which is or has been in progress or is imminent. If I apply these tests, then, in my opinion, the deceased was so engaged. He had abandoned his civilian status for the status of a man enrolled in the Royal Air Force at a time when this country was at war, and he had done so for the purpose of taking part in the war. He had in pursuance of this purpose left his home and the ordinary facilities for making a will which a man has in civilian life, and had been ordered overseas for the purpose of becoming more skilled in his work as a belligerent airman. While overseas he was at any time liable to proceed to some area in order to take part in active warfare. In these circumstances, he was, in my opinion, at the time when he made this will in actual military service…. `.
However, Denning, LL was anxious to make the test simple and certain
- simple, so that it could be understood by all ranks, and
- certain because every soldier should be able to apply it without difficulty in the situation in which he found himself.
For this reason, he formulated the test in a different way and gave some useful illustrations of the personnel who would be included, depending on the circumstances:-61
`The plain meaning of the statutes is that any soldier, sailor or airman is entitled to the privilege if he is actually serving with the armed forces in connection with military operations which are, or have been, taking place, or are believed to be imminent. It does not, of course, include officers on half pay or men on the reserve, or the Territorials, when not called up for service. They are not actually serving. Nor does it include members of the forces serving in this country, or on routine garrison duties overseas, in time of peace, when military operations are not imminent. They are actually serving, but are not in actual `military` service, because no military operations are afoot. It does, however, include all our men serving – or called up for service – in the wars, and women too, for that matter. It includes not only those actively engaged with the enemy, but all who are training to fight them. It also includes those members of the forces who, under stress of war, both work at their jobs and man the defences, such as the Home Guard. It includes not only the fighting men, but also those who serve in the Forces, doctors, nurses, chaplains, Women’s Royal Naval Service, Auxiliary Transport Service, and so forth. It includes them all, whether they are in the field or in barracks, in billets or sleeping at home. It includes them although they may be captured by the enemy or interned by neutrals. It includes them, not only in time of war but also when war is imminent. After hostilities are ended, it may still include them, as, e.g. when they garrison the countries which we occupy, or when they are engaged in military operations overseas. In all these cases they are plainly `in actual military service`. Doubtless cases may arise in peace-time when a soldier is in, or is about to be sent to, a disturbed area or an isolated post, where he may be involved in military operations. As to these cases, all I can say is that, in case of doubt, the serving soldier should be given the benefit of the privilege`.
With regard to cases after the Second World War, there are perhaps three of significance involving respectively the British Army of the Rhine, the Australian involvement in Malaysia and the British Army in Northern Ireland.
In the first case, In the Estate of Colman62, it was held that an officer serving in Germany as part of the British Army of the Rhine was entitled to make a privileged will since he was a soldier engaged on garrison duties in an occupied country as a direct consequence of the surrender of Germany in 1945, even though it was made nine years after the cessation of hostilities and with the assistance of legal advice whilst the deceased was on home leave. Having regard to s.189(1) Army Act 1881, which defined the expression `on active service`, in relation to a person subject to military law, as meaning whenever that person was attached to or formed part of a force which was engaged in operations against the enemy or was engaged in military operations in a country or place wholly or partly occupied by the enemy, or was in military occupation of any foreign country, Karminski, J. applied the test laid down in Re Wingham (supra) by Bucknill, LJ. on whether the deceased was `in actual military service`, and referred to the comments of Denning, LJ. on the garrisoning of occupied countries after the cessation of hostilities.
In the second case, In the Will of Anderson63, a soldier was held entitled to make a privileged will when ordered to proceed as part of the Australian contingent to the assistance of the government of Malaysia to suppress terrorist activity. In the opinion of Myers, J. though there was no state of war, in all other respects there was no difference between the situation of a member of the force of which the deceased was part and that of the member of any other military force in time of war.
In the third case, Re Jones (deceased)64, the deceased was a soldier serving in Northern Ireland as part of the Armed Forces deployed there at the request of the civil authorities to assist in the maintenance of law and order. Whilst on patrol, the deceased was shot by an unknown assailant and, en route to hospital, told on officer and a warrant officer of his battalion, that `1f 1 don’t make it, make sure Anne [his fiancee] gets all my stuff`. Having regard to the tests on the meaning of the words `actual military service` in Re Wingham (supra), and a number of early authorities which suggested that actual military service included the suppression of local insurrections, as well as the persuasive authority of In the Will of Anderson (supra), Amold, P. was satisfied that the deceased was entitled to make a privileged will as he had been `in actual military service` at the time he made his oral declaration. With regard to the nature of the military service in this case, the following comments should be noted in particular:65
`When the deceased in the present case was ordered to go out on his patrol, the fatal patrol, he was obliged, by the conditions of his service in accordance with the discipline which prevailed in his military unit, so to do. That the service was military, that the service was active, seems to me to be beyond contest. The fact that the enemy was not a uniformed force engaged in regular warfare, or even an insurgent force organised on conventional military lines, but rather a conjuration of clandestine assassins and arsonists, cannot in my judgement affect any of those questions and I have no hesitation in pronouncing for this will as a valid nuncupative will. It is not the state of the opponent or the character of the opponent’s operations, in my judgement, which affect the answers to the questions which arise. They must be answered with reference to the activities of the deceased and those with whom he is associated; and it is nihil ad rem in relation to the answers to the questions whether there is service, whether it is active and whether it is military that the context in which it occurs is that of foreign expedition, foreign invasion, or local insurrection`.
Although it has been doubted whether some principle of universal application can be derived from the various authorities, it should at least be accepted that the Courts invariably, if not entirely consistently, place a liberal interpretation on the words `at sea` when applied to a manner or seaman, and not only to members of the naval or marine forces. Unlike the expression `in actual military service`, the words `at sea` have not been confused with the expression known to Roman law as `in expeditione` or any equivalent expression such as `in mare`. Indeed, the authorities suggest that a literal interpretation should not be placed on the words `at sea`, and there are numerous examples of mariners or seaman who have been held to be constructively at sea so as to entitle them to make a privileged will. Most of the cases are concerned with testamentary acts by mariners and seamen who are on shore either before joining a ship, on leave at a port during the course of a voyage or on shore between voyages. What seems to be essential is that the mariner or seaman must be `on maritime service` at the time when he or she made the testamentary act purporting to be a privileged will, though it should be noted that this expression is not exactly the nautical equivalent of `in actual military service` since there is no requirement for the maritime service to be military.
One of the earliest cases, under the Statute of Frauds 1677, was Earl of Euston v Lord Henry Seymour66. In that case, Lord Henry Seymour was the Admiral of the station at Jamaica, who made a nuncupative codicil at his home on shore. As the Admiral had a permanent residence on shore, and only occasionally went on board his ship, he was held not to be entitled to the privilege. By contrast, In the Goods of Lay67, the Mate of HMS Calliope was on shore leave in Buenos Aires, during the course of a voyage, when he met with an accident from which cause he died on shore five days later. Immediately after the accident occurred, the deceased wrote his will in pencil, on a watch bill. The Court, distinguishing Earl of Euston v Lord Henry Seymour (supra), held that the unattested will was entitled to the privilege even though the deceased was not actually on board ship when it was made.
Subsequent cases show that the liberal interpretation accorded to the place where the will was made `at sea` is likewise applied to the physical location of the ship `at sea` – indeed, the ship does not have to be literally at sea. For example, In the Goods of McMurdo68 the will made by a mariner serving on boardHMS Excellent was held to be privileged, even though the ship was permanently stationed in the harbour at Portsmouth. Similarly, In the Goods of Patterson69 a letter containing testamentary dispositions written on board a ship lying within a river, before the ship had actually sailed, was held to be a valid will by a mariner at sea.
For many years the leading case was In the Goods of Hale70 where the deceased was a lady typist employed by Cunard on large ocean liners sailing between Liverpool and New York. Her testamentary dispositions were contained in three letters, none of which were signed or attested, written from her lodgings in Liverpool. After the deceased was lost in the sinking of SS Lusitania by a German U-boat, it was held that she was a mariner `at sea` because the deceased was in the service of Cunard at the time when the documents were written, was under orders to sail on the ship, and therefore those documents were written in contemplation of the sailing of SS Lusitania from Liverpool. This was followed In the Estate of Stanley71 where a nurse, employed under contract by the War Office in hospital ships, wrote a letter containing testamentary dispositions whilst on shore, but after she had received orders to re-embark. Similarly, In the Estate of Yates72 an officer of the Royal Navy was entitled to the privilege when, under orders to join his ship, he told his son on bidding farewell at the railway station that if anything happened to him, he wanted everything to go to his wife.
In the Estate of Newland73 the deceased was employed as an apprentice on SS Strathmore, which served as a troopship voyaging between England and India during the war. Whilst ashore on leave with the approval of his employers, the deceased executed a will in compliance with s.9 Wills Act 1837, but at the time he was under the age of 21 years. Following In the Goods of Hale (supra) Havers, J. made a finding that the deceased was in maritime service at the time the will was written, that it was written in contemplation of sailing on SS Strathmore on a fresh voyage within a very few days, and that he was therefore a mariner at sea within the meaning of s.11 Wills Act 1837. A similar conclusion was reached by Havers, J. In the Estate of Wilson74, in relation to a nuncupative will, in which the deceased uttered the words `If anything happens to me, I want everything to go to my mother`.
The most recent case on the subject is Re Rapley’s Estate75 where it was held that the deceased, though a mariner or seaman at the relevant time, was not entitled to the privilege because, when the testamentary act was made, he was on shore leave between voyages pending the receipt of orders to join a ship’s crew for a further voyage. In other words, the deceased, who was not at the time a member of a ship’s compliment, had not made the testamentary act in contemplation of a specific voyage, and the Court was not prepared to extend the ambit of s.11 Wills Act 1837 to cover the case where the mariner or seaman on leave had not received instructions to join another ship at the time the testamentary act was made. Thus, the privilege may be claimed by a mariner or seaman who is ‘on maritime service’ in the sense that he or she
`either (a) is already (that is at the time of signing the document in question or making the nuncupative will) in post as a ship’s officer… or (b) is already a member of a particular ship’s company serving in that ship… or on shore leave… or on long leave ashore… or (c) being employed by owners of a fleet of ships and having been discharged from one such is already under orders to join another ship in that fleet….76
Exemption from Inheritance Tax
Finally, this article would not be complete without a brief mention of the exemption from inheritance tax accorded by s.154 Inheritance Tax Act 1984. This provides that a charge to tax under s.4 of the 1984 Act shall not apply in relation to the death of a person in whose case it is certified by the Defence Council or the Secretary of State that he died either from (a) a wound inflicted, accident occurring or disease contracted at a time when he was a member of the armed forces (or was subject to the law governing any of those forces by reason of association with or accompanying any body of those forces) and while he was on active service against an enemy (or on other service of a warlike nature or in which in the opinion of the Treasury involved the same risks as service of a war like nature), or (b) from a disease contracted at some previous time, the death being due to or hastened by the aggravation of the disease during a period when he was a member of those armed forces etc and whilst on active service against an enemy etc.
The scope of the exemption was considered in Barty-King v Ministry of Defence77following death from cancer in 1967 of the Duke of Westminster. The Duke had sustained a wound in 1944 while on active service, and his personal representatives claimed that the wound resulted in recurrent attacks of septicaemia which lowered his resistance to cancer and therefore hastened his death, as well as masking the timely diagnosis and treatment of the cancer. The Defence Council had rejected the claim to exemption on the grounds that an ascertainable causal connection had to be shown between the wound and the death. May, J. in holding that the personal representatives were entitled to the declaration they sought, made it clear that it was not necessary to show that the wound was a direct or ascertainable cause of death. Instead, the Defence Council, applying common sense on the facts as known, should have asked itself whether the wound which the Duke had sustained on active service was a cause of his death many years later. It did not have to be the only cause, nor a direct cause, in the sense of having a direct pathological or sociological connection.
Where a claim to the exemption is to be made, a certificate must be obtained from the Defence Council or the Secretary of State for Defence before the exemption can be granted by IR (Capital Taxes).
Christopher J G Parker,
Trusts & Estates Dept.
1  All ER 676 at 681
2  All ER 841 at 843
3  1 All ER 1
4 (1870) LR 5 QB 549 at 565
5 s.1 Wills Act 1837.
6 s.3 (1) Wills (Soldiers and Sailors) Act 1918
7 s 1 Wills Act 1837
8 Re Earl of Chichester’s Will Trusts  Ch. 289
9 s 4 Wills (Soldiers and Sailors) Act 1918
10 s.2 Wills (Soldiers and Sailors) Act 1918
11 s.5(2) Wills (Soldiers and Sailors) Act 1918
12 (1840) 2 Curt. 375
13  2 IR 362 13
14  P. 192
15  1 All ER 852
17 (1843) Curt. 522 at 539
18 (1874) LR 3 P. & D. 204
19  2 Ch. 240
20  2 All ER 609
21  2 All ER 375
22  All ER 676
23  2 All ER 36
24  2 All ER 908
25 as required by s.9 Wills Act 1837
26 contrary to s.7 Wills Act 1837 (infra)
27  P. 7 21
28  P. 99 21
29  2 All ER 36
30  2 All ER 908 21
31  1 All ER 676
32  2 All ER 659
33 rule 18 Non-Contentious Probate Rules 1987
34 rule 17 Ibid
35 Swinburne on Testaments, Pt 1, s.13, p87 cited in Jarman on Wills (8th edition). Vol 1, p121
36 rule 54 Ibid.
37  2 Ch. 82
38 s.3(3) Family Law Reform Act 1969
39 s.15 Wills Act 1837
40  2 Ch. 240
41  P.194
42 s.21 Wills Act 1837
43 (1874) LR 3 P, & D. 204
44  P. 54
45  P. 118
46  P. 7
47  P. 46
48 (1917) 34 TLR 138
49  2 All ER 36
50  2 All ER 659
51  2 All ER 829
52 (1843) 3 Curt. 522
53 Ibid at p538 citing Swinburne on Testaments Pt 1, s.13, p95
54 (1844) 3 Curt. 818
55  P.78
56  P.99
57  2 Ch. 240
58  1 All ER 676
59  2 All ER 908
60 per Bucknill, LJ. at 911
61 at 913-914
62  2 All ER 35
63 (1958) 75 WN (NSW) 334
64  1 All ER 1
65 Arnold, P. at 5-6
66 (1802), cited In the Goods of Hayes (1839) 2 Curt 338 at 339
67 (1840) 2 Curt. 375
68 (1868) LR 1 P. & D. 540
69 (1898) 79 LT 123
70  2 IR 362
71  P.192
72  P.93
73  1 All ER 841
74  1 All ER 852
75  3 All ER 248
76 per Judge Finley, QC at 251
77  2 All ER 80