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

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

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?

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.

"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.

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

• 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 in Drummond 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 override s.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

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

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.

Testamentary Intention
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

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 of Drummond 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:-

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,

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

• 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

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 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

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 board HMS 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

The scope of the exemption was considered in Barty-King v Ministry of Defence⁷⁷ following 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.

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