The Anachronism of Privileged Wills

Roman Law from the time of Julius Caesar, extended a special privilege initially to soldiers, and then seamen to grant the entitlement to make valid Wills without any formalities. This is one of the ways in which Roman law influenced and was adapted by several European countries including England.

The exemption in favour of the privileged testator was retained in the United Kingdom through the Wills Act 1837, which was reproduced in each of the Australian States. Currently only South Australia, Tasmania and the ACT provide for the exemption. The ACT provides:

“(a) members of the Defence Force who are in actual armed service;

(b) persons employed outside Australia as representatives of organisations rendering philanthropic, welfare or medical service to members of the Defence Force;

(c) prisoners of war or persons interned ….as a result of war or warlike operations and were, immediately before their capture or internment, persons included in a class of persons specified in paragraphs (a) or (b)”

can make a written or oral declaration, of their intention with respect to the disposal of property upon their death, which is considered as valid and effectual as it would have been if it had been made and executed in accordance with the usual formalities, and can include people under the age of 18.

The privilege only applies in limited situations, however Courts have extended it to include warlike operations, such as a British soldier serving in Northern Ireland during the troubles and an airman at a training camp in Canada during World War II as he could have been posted to an operational area at any time; it also includes support personnel such as army nurses, typists or barmen on liners, as they may be in as much danger as the service personnel themselves.

A Court must be satisfied that the Will maker possessed the necessary testamentary intention when making the declaration. Therefore the words ‘If I stop a bullet, everything of mine will be yours’ were held to fulfil the requirement for testamentary intent. However a barman on a passenger liner repeatedly saying that if anything happened to him, his sister would get everything was held not to be a statement of testamentary intent

The argument for extending the privilege to service personnel was considered to be as a reward for engaging in socially beneficial occupations involving considerable risk. Importantly at a time a large number of soldiers and sailors were aged under 21 (at that time were legally minors) and therefore lacked the capacity to make a Will.

Similarly until relatively recently warfare and sea travel were risky, and involved long periods away from home with poor communication, and a lack of professional advice. However it could be argued in Victorian England there was probably not a great deal of access to legal advice amongst the general population.

The notion of privileged wills has not been extended to people that are involved in dangerous, socially beneficial occupations (police, fire fighters, and underground miners for example). It is only Military personnel that can take advantage of the exemption from the formalities of Will making.

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