Individuals serving in the Royal Navy, Army, Royal Marines, or Royal Air Force, and sailors at sea, can create valid Wills without adhering to the usual formalities. A privileged Will does not need to be in writing; however, if it is verbal (or nuncupative), the Court must be convinced of the precise wording or at least its essence, along with the deceased’s intention to make a bequest upon their death. A written privileged will is not required to be signed by the testator or witnessed.
Section 9 of the Wills Act 1837, a cornerstone of estate law, stipulates that a valid Will is written. When signed by the testator (or at their direction while they are present), the signature reflects the testator’s testamentary intention. Two individuals witness who are physically present simultaneously observe and acknowledge the signature. The witnesses each sign or recognise their signatures in the testator’s presence, affirming the testamentary Act’s solemnity.
Section 11 of the Wills Act 1837 (the 1837 Act) provides that any soldier in active military service, or any mariner or seaman at sea, may handle their estate as they could have before the enactment of the 1837 Act. This provision ensures that a privileged Will may be created, even verbally, without adhering to the formalities in s9 of the 1837 Act. Significantly, this privilege was further extended by the Wills (Soldiers and Sailors) Act 1918, thereby ensuring fairness and equity for those serving their country.
Section 11 of the Wills Act 1837 permits soldiers, mariners, or sailors in “actual military service” to create a verbal or ‘nuncupative’ Will. The Wills (Soldiers and Sailors) Act 1918 further clarified and expanded this section to ensure it applies to naval and marine forces at sea and engaged on land.
If specific conditions are satisfied, soldiers, sailors, and seamen’s expression of testamentary intentions (verbal or written) form a legally enforceable Will, even if they do not meet the formalities in section 9 of the Wills Act. This legal provision ensures that their wishes are respected and their loved ones are provided for, thereby instilling a sense of security in their service.
Section 11 of The Wills Act 1837 provides:
“Any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his estate just as he could have done before this Act was established.”
Background
Goods of Hale [1915] 2 IR 362 involved an application by Andrew Edmund Taylor, the father of Helen Margaret Taylor and Dorothy Joan Hamill Taylor, minors, who were alleged in the notice of motion to be universal legatees under the Will and codicil of the deceased, dated respectively January 14, 1915, and “St. Patrick’s Day,” 1915, for an order granting him permission to obtain on their behalf a grant of administration of the deceased’s estate, along with the Will and codicil attached, for the benefit of Helen Margaret Taylor and Dorothy Joan Hamill Taylor until one of them reached the age of twenty-one.
Sarah Rachel Orr Hale, known as ‘Sadie’ Hale, was born in Ballymena, County Antrim, Northern Ireland, in 1886 to parents John F. and Matilda J. Hale. The family resided at Ierne, Cranmore Gardens, Belfast.
In 1909, the Cunard Steamship Company employed the deceased as a typist on transatlantic liners. Her weekly wage was £1, and the deceased probably earned additional compensation from passengers for her typing services. Between voyages, she worked in Cunard’s offices located in Liverpool. By 1915, Sadie Hale resided at Mildmay House, Blackburne Place, Liverpool, Lancashire, England. She began employment in Liverpool on April 13 as a typist in the Deck Department.
Sadie had written several letters to be given to her family following her death, including details of her insurance policies and bank savings accounts and instructions on the disposal of her property. Except for a few items, most of her estate was to be divided equally between two nieces, Helen Margaret Taylor and Dorothy Hamill Taylor. Sadie’s estate amounted to £443-12s-10d, but a legal predicament followed regarding whether or not Sadie’s letters amounted to a Will.
Three documents comprised her Will; they were unsigned nor witnessed as mandated by the Wills Act 1837. However, although drafted from the deceased’s lodgings in Liverpool, they were created with the anticipation of sailing.
Only to be opened after my death.
To Mrs. Taylor (or Mrs. Hale),
Ierne,
Cranmore Gardens, Belfast.
The letter and enclosure were as follows:—
Mildmay,
Blackburne Place, Liverpool,
January 14, 1915.
Dear Mother and Tillie,
I attach a paper showing how I desire my capital disposed of. My personal belongings I leave you to deal with as you wish.
I would like Miss Larisch, of Mildmay, Blackburne Place, Liverpool, to to get one of my trinkets as a remembrance, or, failing that, a piece of crystal or silver.
My books are at Plym, Manor Road, and I should like you to write to Miss Pilling, 20 Rufford Road, Liverpool, giving her a list of my library, and asking her to choose six volumes. The remainder you can keep.
Mrs. Oxton, 52 Bebington Road, Higher Tranmere, Birkenhead, Cheshire, should also get a trinket or piece of crystal.
Amongst my belongings you will find a book containing addresses, and those marked with an “X” I should like you to advise that I have died.
I have one large trunk at Mildmay, a green suit-case, a cardboard hat-box, and a leather suit-case (the last-mentioned is in Miss Larisch’s room). At sea I have one cabin trunk and a kit-bag.
I hope this will be quite clear to you.
Sarah Hale.
Mildmay,
Blackburne Place, Liverpool,
January 14, 1915.
I desire that my entire capital, which is invested in the Cunard S.S. Co., Ltd., Savings Fund, the Post Office Savings Bank, and J. and E. Taylor, 3 Little Victoria Street, Belfast, be equally divided between my nieces, Helen Margaret Taylor and Dorothy Joan Hamill Taylor.
Sarah Rachel Orr Hale.
On May 7, 1915, a torpedo launched from a German U-boat struck the RMS Lusitania on its way from New York to Liverpool. The German submarine U-20 attacked without warning, and following a second explosion, the ship sank rapidly. It disappeared beneath the sea in 18 minutes, leading to the tragic loss of 1,200 of the nearly 2,000 passengers and crew onboard. This event, a stark reminder of the perils of war, is a significant part of the historical context in which the legal issues of this case unfolded.
On February 4, 1915, Germany declared a war zone surrounding Britain, stating that any vessels—whether military or civilian—would be treated accordingly.
The matter
Sadie’s family sought an exemption under the provisions of the Wills Act of 1837. A Will requires the maker’s signature to be witnessed by two other persons. However, any soldier in actual military service, mariner, or seaman at sea could dispose of their personal property without a witness witnessing their signature.
Madden J deemed Sadie a ‘seaman’ for the exemption and ruled that her letters amounted to a legal Will.
Held that every person employed in any branch of the Royal Navy or Merchant Service, from the highest to the lowest, is included, when at sea, in the exceptions contained in s11 of the Wills Act; consequently, the deceased came within the meaning of the term “mariner or seaman”; not confining the term to males.
Held also that the deceased was “at sea,” within the meaning of the section, at the time of making her Will.
Just as they did during the world wars, when confronting unprecedented issues of mass conscription and the ramifications of aerial warfare, the courts continue to interpret the provisions of s11 of the 1837 Act to preserve the privilege for soldiers on active duty. The law’s adaptability to changing circumstances ensures continued relevance and effectiveness.
Case Law
In the Estate of Stanley [1916], P.192 followed Goods of Hale. A nurse employed under contract by the War Office in hospital ships wrote a letter containing testamentary dispositions while on shore but after receiving orders to re-embark. Similarly, In the Estate of Yates [1919] P.93, 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.
Section 2 of the Wills (Soldiers and Sailors) Act 1918 further clarified that s11 of the Wills Act:
“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 in such a circumstance that if he were a soldier, he would be considered in actual military service as defined by that section.”
The Wills (Soldiers and Sailors)Act 1918 was a significant development in the law, as it expanded the privilege to include personnel serving in foreign armed forces, broadening the scope of the 1837 Act.
Mariners or seamen must be “at sea,” meaning they have joined a vessel on service and commenced a voyage; a Will made during that voyage meets the exception in the 1837 Act, even though the testator made it on shore. In Re Wingham (deceased): Andrews and Another v Wingham[1948] 2 All ER 908] the Court dismissed the assertion that the legislation restricts this privilege to individuals serving on British-registered vessels. The Court also examined the significance of the 1918 Act, and case law broadened the privilege to include personnel serving in foreign armed forces.
In Re Wingham (deceased): Andrews and Another v Wingham[ [1948] 2 All ER 908], a soldier was on operational duties as a trainee pilot in Saskatchewan, Canada, during World War II. Saskatchewan was only a day’s flight from the enemy. During this time, he wrote an informal will that left his property to the plaintiffs. But after becoming a pilot instructor, he was injured in an aircraft accident and died in hospital. Bucknill LJ and Cohen LJJ felt that since the deceased testator was liable to be ordered to proceed to some area to participate in active warfare, he was in “actual military service”. Bucknill LJ defined the phrase as
“military service that is directly concerned with operations in a war which is or has been in progress or is imminent”.
No actual declaration of war is necessary to invoke the privilege.
Denning LJ’s formulation was similar, and he added that this would include all kinds of people whether
“in the field or barracks, in billets or sleeping at home. It includes them although they may be captured by the enemy or interned by neutrals”.
But he went further by commenting:
“The plain meaning of the statutes is that any soldier, sailor or airman is entitled to the privilege if he is serving with the Armed Forces in connexion 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 serving. Nor does it include members of the Forces serving in this country or on routine garrison duty overseas, in time of peace, when military operations are not imminent. They are serving, but are not in actual “military” service, because no military operations are afoot.”
“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 in times of war and when war is imminent. After hostilities are ended, it may still include them, as, for instance, 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”.
In the Estate of Newland [1952] 1 All ER 841, the deceased was 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 the Goods of Hale, Havers, J. found that the deceased was in maritime service when they wrote the Will in contemplation of sailing on a fresh voyage on SS Strathmore within a few days; therefore, he was a mariner at sea under s.11 Wills Act 1837.
Havers, J. Reached a similar conclusion In the Estate of Wilson [1952] 1 All ER 852 concerning a nuncupative will, in which the deceased uttered the words
`If anything happens to me, I want everything to go to my mother`.
However, in Re Rapley’s Estate [1983] 3 All ER 248, it was held that the deceased, though a mariner or seaman at the relevant time, was not entitled to the privilege because, when making the testamentary Act, the deceased was on shore leave between voyages pending the receipt of orders to join a ship’s crew for a further journey. In other words, the deceased, who was not a member of a ship’s complement, had not contemplated a specific voyage when making the testamentary Act.
The Court would not extend the ambit of s.11 Wills Act 1837, in which the mariner or seaman on leave had not received instructions to join another ship when making the testamentary Act. Thus, a mariner or seaman who is ‘on maritime service’ may claim the privilege if they are either:
(a) already (that is, at the time of signing the document in question or making the nuncupative Will) hold a 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 extended 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
…. per Judge Finley, QC, at 251
The first reference to a privileged Will in an English statute originated from the Statute of Frauds 1677 (29 Car II c 3). As stated in its preamble, this statute’s objective was to prevent “Frauds and Perjuryes” caused by the informal making of wills. The statute established procedures that applied to most Wills concerning real and personal property, explicitly requiring for the first time various formalities for Wills that dealt with personal property valued over £30. However, section 23 of the Act provided an exception by allowing soldiers and sailors to continue creating valid wills informally.
Many sources trace this privilege back to Roman law. Sir Leoline Jenkins, who was responsible for drafting the relevant section of the Statute of Frauds 1677, noted in a prologue to his biography that he had secured for soldiers in the English army the complete advantages of the testamentary privileges enjoyed by the Roman army.
This provision was reiterated in section 11 of the Wills Act 1837 (7 Will IV and 1 Vict c 26) as follows:
11. It is always provided … that any soldier on active military duty, or any mariner or seaman at sea, may manage his personal estate as he could have done prior to the enactment of this Act.
This section remains in effect today, expanded by the Wills (Soldiers and Sailors) Act 1918 to include individuals under 21 years old and for the transfer of real estate and personal property.
The participation of naval forces in land operations and the introduction of aerial warfare during World War II (1914-18) also led lawmakers to broaden the application of privileged wills to encompass personnel involved in these scenarios.
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