I was a child when first told of my great-great uncle, Captain Frederick Charles Davies (pictured). He died, aged 33, on 17 October 1917 during the battle of Passchendaele. He was not killed fighting – not even the generals of the first world war sent surgeons into battle – but instead while catching some probably desperately needed sleep before returning to the operating theatre, under a tank or other armoured vehicle to shield himself from shells. Unfortunately, an incoming shell hit the vehicle.
Uncle Fred – as the family continues to remember him – made a Will, in France, just five weeks before he died, leaving his estate to his mother, my great-great grandmother “as it is to her that I owe so much.”
The written record of the Will says simply that. He appointed no executors. There were no attesting witnesses as required – then and now – by the Wills Act 1837. The Probate Registry record states: “Affidavit of handwriting and that testator made his Will while a soldier in actual military service filed.”
The Will he made was a privileged will, one covered by section 11 of the Act which provides rather unhelpfully: “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 Statute of Frauds of 1677, which first required Wills disposing of personal property (ie not land) to be in writing.
Wills made before 1677 were governed by common law and did not require any formalities. A privileged Will can, therefore, be in the form of a letter, an amended (but unexecuted) draft Will, or even oral. The Court must be satisfied of the exact words, or as to their substance, and that the deceased intended them to be acted upon were he to die. In Re Jones, a soldier serving in Northern Ireland was killed by IRA terrorists having told a fellow officer: “If I don’t make it, make sure Anne gets all my stuff”. The Will, evidenced by a sworn affidavit, was admitted to probate.
The only Will a minor can make is a privileged one: the Wills Act expressly states that no Will made by anyone under 18 shall be valid. Section 11, however, disapplies this in the case of many a 17-year old killed in the Great War, making their Wills valid at common law, by which a male could make a Will at the age of 14, a female at the age of 12.
The purpose of what is, in effect, an exemption from entirely justifiable legal formalities is clear: many of those who have served our country in war were young, ill-educated, lacking great resources and suddenly faced with a horrific, life-threatening, situation the pre-war recruitment slogans – “Lord Kitchener wants you” etc – had not prepared them for. It is right that the law provided them with this opportunity to express their testamentary wishes, and to have them acted upon.
A privileged Will, interestingly, is not revoked automatically by the survival and departure from the theatre of operations of the testator. It may be revoked in the same manners as an ordinary Will, typically by marriage, or another Will which revokes it.
Mercifully, privileged Wills are rare other than in wartime, but they have a continued relevance given that the forces recruit people under 18 who are unable to make a conventional Will. Further, they provide a good example of how the undesirable side of legal rules and formalities can be set aside in extremis.