PRIVILEGED WILLS

Certain persons are allowed by reason of their occupation to male wills which need not conform to the formalities required under S. 5 of the Wills Act. Section 26 : Privileged wills of soldiers, airmen and sailors. (1) A member of the armed forces of Malaysia being in actual military service, and a mariner or seaman (including a member of the naval forces of Malaysia) being at sea may dispose of his property or of the guardianship, custody and tuition of a child or may exercise a power of appointment exercisable by will by a privileged will. (2) For the purposes of this section a privileged will means any declaration or disposition, oral or in writing, made by or at the directions of the testator which manifests the intentions of the testator which he desires to be carried or to the guardianship, custody and tuition of a child or to the exercise of a power of appointment.

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(3) A declaration may be a valid privileged will notwithstanding that it was not executed in the manner appearing to have been intended by the testator or that it was intended by the testator subsequently to execute a formal will to give effect to his testamentary dispositions, unless it appears that the failure to execute such declaration in such manner or such formal will was due to the abandonment by the testator of the testamentary intentions expressed by such declaration. (4) Sections 4, 5 and 6 shall not apply to privileged wills, nor is it necessary for a written privileged will to be signed by the testator. (5) A privileged will other than a will which apart from the provisions of this section would have been valid under this Act shall be null at the expiration of one month after the testator being still alive has ceased to be entitled to make a privileged will.

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Such wills can be made orally or in writing and need not be witnessed. Basically, privilege is allowed in three categories of testator : a) Soldiers in actual military service; b) Mariners or seamen at sea; c) Members of His Majestys naval or marine forces being at sea Why the privilege? Prior to 1677, wills of personalty could be made by oral declaration without any form being necessary. The Statue of Frauds 1677 added in formalities but exempted soldiers and seamen from the new requirements. The privilege was confirmed by the Wills Act and now applies to both personalty and real estate.

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Reason for privilege is because soldiers and seamen are likely by reason of their occupation to be outside the routine of civilian life. Thus, they have less opportunity and fewer facilities to make a properly executed will. Henns Collins J in Re Gibson (1941) : the foundation for the rule is that a man is parted from civil surroundings. This was derived from Roman Law where the soldieris entitled to make an informal will while in expeditione (while on campaign) because he was inops consili (bereft of advice). In Drummond v Parish (1843), Fust J traced the privilege making of a soldiers will back to Julius Caesar and suggested even to resort to the Roman Law in order to inteprete the English Law. Nevertheless, in the modern world, the justification for the rule i.e. being parted from civil surroundings has become obscured. This is due to the changing nature of warfare today.

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Arguments against retaining the privilege a) The circumstance which required for the making of such wills is no longer present today. Soldiers and seamen are far more literate today , far more easily able to obtain legal advice, and likely to be away for far shorter periods. The army is also encouraging the soldiers to make wills. b) By allowing the privilege to persons in certain occupations, an arbitrary division results whereby certain other possibly deserving categories are excluded. This can mean that the law can either abolish the categories of people allowed to make privilege will, or expand the categories. The privilege should be accorded to others such as scientists on polar expeditions who maybe parted from civil surroundings.

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One must remember that privilege wills are an exception to the fundamental requirement that wills should be made in writing, signed by the testator and duly executed. There are good reasons why such formalities should be followed. There may be some cases where it is difficult to justify why privilege was allowed. Perhaps, each case should be treated in its own circumstances and requiring it to be shown that the testator had no reasonable opportunity to make a normal will. Nevertheless decided to retain such wills, stating that there may be circumstances where such privilege may be needed. Even in peacetime, there may be occasions where the servicemen may make privilege wills in the course of certain military operations, for e.g. in Northern Ireland where a soldier may be fatally injures by terrorists.

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Soldiers in actual military service. The required status must be satisfied at the time of the making of the will and not at the time of death. Soldiers would include even those not engaged in fighting for e.g., doctors, nurses and chaplains serving with the force. In the Estate of Stanley (1916), a nurse serving under contract to the War Office on hospital ships was held to be entitled to the privilege. In the Application of White (1975), a civilian engineer employed by the US Army was held to be a soldier. The testator must also be in actual military service. Bucknill LJ in Re Wingham (1949) stated : I do not think the test is whether the airman was in danger from enemy action at the time when the will is made In my opinion the tests are (a) was the testator on military service? (b) was such service active? In my opinion, the adjective

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active in this connexion 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. In the above case, testator joined the Royal Air force during the second world war and was sent to Saskatchewan in Canada to complete his training. He made an unattested will and died a few months later in an aircraft accident. The courts held that he was entitled to make a privilege will. Denning LJ went further and added : doubtful cases may arise in peacetime 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 say is that, in case of doubt, the serving soldier should be given the benefit of the privilege. Note the case of Re Jones (1981).

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Peacekeeping operations at times of insurrection and civil disorder may amount to actual military service. This was made clear in the case of In the Goods of Tweedale (1874). A soldier can also be in actual military service even though no military operations have occured provided that they are believed to be imminent.

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Mariner or seaman at sea The term mariner or seaman includes not only members of the merchant navy and Royal Navy but also everyone serving essentially a civilian capacity in the merchant navy. In the Estate of Knibbs (1962), a barman on a liner was held to be entitled to make a privilege will, although here, he did not make one. In the Goods of Hale (1915), a typist regularly employed on ocean-going liners was held to be a seaman. She worked for the Cunard Steamship company and was one of the victims when the Lusitania was sunk by a German submarine. Whenever doubtful, it is important to focus on the rationale of allowing the privilege, namely the removal form normal civilian life of certain persons by reason of their occupation.

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As for the term at sea, it has been intepreted very widely and includes lakes, rivers and canals. In the Goods of Austen (1853), a codicil made while on an expedition on the Rangoon River was held to be privileged. How if a seaman makes his will on land? In the Goods of Hale, Sarah Hale had actually made her will at the Liverpool offices of Cunard after receiving notification of her next voyage. It was held that the will was privileged because Sarah had written it while preparing for the voyage, hence she was at sea. In Re Newlands Estate (1952), testator made a will while he was on shore leave. He was held to be entitled to make privileged wills since he was already instructed to rejoin his ship for the next voyage.

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This case can be contrasted to Re Rapleys Estate (1983). The facts were similar but the tstator had been discharged from his previous ship and had yet been instructed to join another ship when the will was made. Finlay J stated : The cases have gone very far to extend the meaning of at sea to include those who are in a state of preparation for going to sea, being under orders to do so, but to go beyond that and to extend the ambit of the section to cover the case where a mariner or seaman is on furlough or leave, knows well that he may at any time be instructed to join another ship but has not at the moment received such instructions is, I think, to extend the operation of the section beyond the circumstances which were no doubt in the contemplation of the legislature

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Naval personnel at sea As for Royal Naval personnel at sea, the same rules as for a seaman would apply. Formalities Privileged wills can be made without any formalities. The will need not be in writing. Neither is there a requirement for the attestation of witnesses. Note also that since there are no need for witnesses under a privilege will, it does not matter even if a witness happens to be a beneficiary. S. 9 of the Wills Act does not apply. A privileged will counts fully as a valid will and will revoke any prior wills to the extent of any inconsistencies.

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In Malaysia however, a privilege will shall cease to be a valid will after one month of the testator ceasing to be have the privilege provided he is still alive [S. 26 (5)]. This differs from the UK where a privilege will remains operative until revoked. In fact, our law is very much alike to Roman Law in this aspect where a soldiers will lapsed after he is discharged from duty. Minors can also make privileged wills and can revoke such wills. Finally, a privilege will revokes all prior wills. A privilege will can also be revoked by any of the revocation methods under S.12 or S.14 of the Wills act. Note also that in addition to being able to revoke a privileged will in the above mentioned manners, a privileged will can also be revoked by an informal writing declaring an intention to revoke. This is because if a person is able to make a privileged will without formalities, he should be able to revoke the will in a similar way.