When it comes time to think about writing a will, the stereotypical image conjured up is that of sitting down with pen and paper or making an appointment with a solicitor to draw up the document. We then rattle off how we want our property and assets to be divvied out and we sign the document, usually with a couple of witnesses signing it at the bottom.
Indeed, this image is true in most cases, and the vast majority of wills are not accepted as valid unless they adhere to Section 9 of the Wills Act 1837. This section of the act states that the will must be in writing and that it should have your signature and those of at least two witnesses. This practice is designed to ensure that the will drawn up does actually reflect the true wishes of the testator, and to reduce instances of fraud or signing the document under duress.
Whereas the majority of us do have to abide by these proper formats and procedures, there are instances where a nuncupative (oral) will is accepted. An oral will is one that is given to at least one witness. The testator tells the witness how he or she wants his or her property or assets to be distributed without writing the details down or signing any documents. In ordinary cases an oral will is invalid due to the possibility of misunderstanding, fraud or error on the part of the witness.
So who can make a legally binding oral will? Well, Section 11 of the Wills Act 1837 states that “Any solider 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 making of this Act”. This essentially means that any personnel in the Army, Navy, Merchant Navy or Royal Air Force can make an oral will to a witness and it will be seen to be valid. This act also means that if a soldier, sailor or airman manages to write a will in pencil with no or few witnesses, this will be upheld.
In addition to this, the Soldier and Sailors Act 1918 ensures that these personnel can make an oral will that is valid even if they are under the age of 18 (under the Wills Act 1837, section 7 states that no will made by someone under the age of 18 is valid).
This means that in the current climate there may be more and more oral wills left by service men and women, particularly since a recent court case has highlighted the fact that oral wills are valid for military and marine personnel. Unfortunately, these kinds of wills can cause months of legal battles and problems, such as the only witness being killed in battle, leaving no way of gathering evidence of the oral will being made. In addition, the oral will may be contested by parties due to intestacy provisions. Therefore it is recommended, if possible, to leave a written will to avoid stress and strain for spouses, children, other family members or friends.
Although valid, many oral wills will go to court. Take for example the case of Ayling vs. Summers et al, in which merchant seaman Ashley Servoz-Gavin’s oral will was being contested by members of his family who would not benefit otherwise. Mr. Servoz-Gavin had stated on several occasions to his cousin that when he died he wanted his estate left to his aunt. He had never written a will and so the cousin gave evidence of his nuncupative will in court. The argument by the other members of the family was that the deceased was “not at sea” when the statements were made and that he was about to depart for service on a foreign vessel. The judge stated that because Mr. Servoz-Gavin was about to join his ship (and that the fact that it was a foreign vessel was a restrictive interpretation on the part of the claimant’s lawyer) and that the deceased’s oral will still fell within the definition of the Wills Act 1837, he was granting the proceeds of the will to the aunt for whom the deceased had intended it to go.
The Legal Secretary Journal
