Military Wills

Question 1

Stuart v Stuart

Answer 1

Letter from soldier on active service which said I want you to draw up draft will did not show present testamentary intention - future only

Question 2

Arguments for formal validity

Answer 2

Protection from forgery
Can lead to litigation if no formality 
Easier, know where you stand
Reinforces testamentary intention - more likely to be true if you have to think about it and draft proper document 
No witnesses - hard to prove

Question 3

Args against formal validity

Answer 3

Shouldn’t deny wills their testamentary value
Wills can be made without lawyer
Some can’t afford to engage sol
Sols not always available

Question 4

Statute of Frauds

Answer 4

Introduced formalities but exempted soldiers on active military service and mariners at sea.

Question 5

Wills Act 1837

Answer 5

Soldiers on active military service, Mariners and seamen

(Wills (Soldiers and Sailors) Act 1918 extends further

Question 6

Why do we have military wills?

Answer 6

Inops consilii - lack of access to solicitor
Lack of education for soldiers - don’t know how to construct a will (formerly)
Life threatening situations, more likely to need
Keep up servicemen morale

Question 7

What is ‘active military service’?

Answer 7

On military service

Fighting must be in progress or imminent

(Re Wingham)

Question 8

Re Jones

Answer 8

Army officer in N/Ireland. Make sure Anne gets my stuff - enough!

Question 9

How long do soldiers’ wills last?

Answer 9

Forever in England (Re Booth) other jurisdictions cut to 1 year after return from service

Question 10

Service must be imminent

Answer 10

Not where had not been engaged on next ship (Re Rapley)

Question 11

France

Answer 11

Null 6 months after testator returns to normal life

Question 12

Germany

Answer 12

Emergency wills for all - if thinks he will die before will made, can make it by means of record drawn up by mayor of place where he lives. 2 witnesses or can be oral and without mayor if 3 witnesses

Question 13

Should we extend scope?

Answer 13

Firemen, police, oil rig workers?

No they all have access to sols and can go home much more often than soldiers etc

Question 14

Issues with oral

Answer 14

Heard it correctly?
Another person might make it up, harder to control
Final intention / offhand remark

Question 15

Does Scotland recognise?

Answer 15

No, testamentum militare not recognised