UK: Soldiers' Wills Can Be Complicated

Last Updated: 30 July 2012
Article by Matthew Evans

A bitter dispute over an alleged Last Will and Testament of a British Marine killed in Afghanistan made the headlines and brought into sharp focus the unique and complex law surrounding wills for British service men and women.

In December 2008 Cpl Rob Deering was killed after stepping on a Taliban booby trap mine whilst rushing to help his injured colleagues in Helmand Province.  He was serving with the Commando Logistic Regiment.

At the time of his death Cpl Deering was in a relationship with his girlfriend, Gemma Polino and had been for four and a half years.  Earlier in 2008 (before Cpl Deering returned to Afghanistan in August) they had moved into a £148,000 house in Sheldon, Birmingham.  They were due to marry this May.

Upon Cpl Deering's death, Miss Polino attempted to claim the proceeds of his estate on the basis that she was aware that he had executed a will shortly before returning to Afghanistan leaving his estate, including his share of the house and a life assurance policy to cover the mortgage, to her.  If such a will existed then it would supersede a will written in 2006 in which Cpl Deering left his estate to his sister, Elaine.

Despite searches being undertaken by the MOD, however, there appears to be no record of a new will as described by Miss Polino.  For her part she insists that Cpl Deering handed the document in just before he left for Afghanistan but it was lost by unit administrators before it could be sent for safekeeping to the documents handling unit in Glasgow.

The family, on the other hand, denies that Cpl Deering would have executed such a document and say that his colleagues had told them of his intentions to leave the bulk of his estate to them.

Disputes over wills of members of the armed forces are not uncommon and Hugh James solicitors has previously dealt with matters arising in the estate of Pte Gavin Williams, a young servicemen from South Wales who died leaving a standard services will in which he bequeathed his entire estate to his then girlfriend to the exclusion of his family, including his younger sister to whom he was very close and who suffered from a disability. 

Unfortunately, by the time that Pte Williams died he had long split up with his girlfriend but had not taken any steps to alter the terms of his will.  Moreover, due to the nature and timing of his death, Pte Williams' estate was substantially larger than he perhaps could ever have envisaged at the time that he made it.  Notwithstanding those circumstances, his ex-girlfriend refused to relinquish the majority of her interest in the estate and ultimately Pte Williams' mother, Debra, had to take the difficult decision to accept a small payment from the estate on behalf of the family rather than risk substantial legal costs pursuing the matter further.

Investigations into the circumstances surrounding the execution of Pte Williams' will revealed that the completion of the document was part of the routine process which the serviceman went through when entering the armed forces and, in all likelihood, he probably gave very little thought to the contents of it or much consideration to it afterwards.

Both of the above cases are examples of problems that can arise from wills made by service men and women but the position is arguably exacerbated further by the unique law that governs them.

For example, it is long standing British law that wills of soldiers in actual military service are not required to follow the standard requirements that usually govern wills as provided by the Wills Act 1837.  What that means in practice is that such 'privileged' wills do not have to be witnessed in the way that a non-privileged will would.

Moreover, a soldier in actual military service can make (and revoke) a privileged will even though they are under the age of eighteen, unlike non-privileged Wills. 

Perhaps even more surprisingly, the will does not even have to be in writing and can, in certain circumstances, simply constitute of words spoken by the testator so long as it is a deliberate expression of his wishes and not a mere casual conversation.  In the same way that a privileged will can be made orally, it can also be revoked orally although simply a return to civil life or a lapse in time will not be sufficient for revocation. As with non-privileged wills, however, marriage will revoke a privileged will.

Over the years case law has extended the scope of privileged wills to members of the Royal Navy and Marine Forces and also members of the Royal Air Force.  The term 'soldier' has also been found to mean officers of every rank and service, although not civilian engineers employed by the army but having no military status. 

The definition of 'actual military service' has also been broadened considerably and certainly does not simply mean individuals within the theatre of war.

As is apparent, all of the above legal peculiarities and nuances can potentially give rise to disputes and confusion and expert legal advice may therefore prove invaluable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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