Does the verbal statement “if I don’t make it, make sure Anne gets all my stuff” constitute a valid Will?
The short answer is, in the vast majority of cases, no. The Wills Act 1837 lays down strict formalities to be complied with for a Will to be valid. In simple terms, it has to be in writing and signed by the testator in the presence of two witnesses who confirm the signature.
Nevertheless, in Re Jones (Deceased)[1] that exact statement was held to be a valid Will. How?
Section 11 of the Wills Act 1837 allows soldiers, mariners or sailors in “actual military service” to make a verbal or ‘nuncupative’ Will. The section was clarified and extended further by the Wills (Soldiers and Sailors) Act 1918 to ensure it covered naval and marine forces who were not only at sea but engaged on land.
It was clear at that time what was meant by “actual military service”, was being in the midst of the Great War.
But what of armed insurrections or insurgencies against irregular militants at home or abroad? Would that be classed as ‘active military service’?
In Re Jones (Deceased) the deceased was a soldier serving in Northern Ireland who was mortally wounded on patrol.
When he was on the way to the hospital he made the statement. He very sadly died the next day from his wounds.
The court had to decide if his activities in Northern Ireland constituted actual military service. There was no opposing military force of the conventional type.
Rather the army at the time was facing “a conjuration of clandestine assassins and arsonists”. The judge concluded the duties the testator was undertaking at the time should be what the court considers when deciding if they were in active militarily service, not the nature of the opposition they were facing. It was decided the nature of the testator’s patrol duty was clearly ‘active’ and undoubtedly ‘military service’ and the verbal Will was upheld.
The fact the army faced an irregular foe, made up of armed civilians, was not the deciding factor.
Although these verbal Wills are rare and will remain even more so in peaceful times, they are still something we need to consider and keep in mind particularly in Devon and Cornwall. The counties play host to the largest naval base in Western Europe, HMNB Devonport, the Royal Marines training base at Lympstone, and RNAS Culdrose is Cornwall’s largest single-site employer.
If you are ever in the unfortunate situation where a loved has sadly passed away during active service don’t presume because they didn’t make a written Will or if they did, that is the authority for the distribution of their estate. It is always worth checking whether they made a verbal Will which is capable of being upheld.
[1] [1981] 1 ALL ER 1