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Privileged Wills

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Privileged Wills do not just apply to soldiers on the front line; it is also possible for civilian support staff to execute a Privileged Will if they are being posted into an operational area.

In law, a Will must be a written document, signed by the person meaning to give effect to the Will, in the presence of two independent witnesses. The person making the Will must also be an adult.

By contrast, Section 11 of the Wills Act 1837 provides that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his property after death without the above formalities. The privileged Will can still be valid and can either be oral or written. This is advantageous as the Will is capable of being made at extremely short notice where a person is about to put their life at risk.

The requirement for witnesses to be present does not arise, although if the Will is an oral declaration it must of course be witnessed for there to be any evidence of it. What is important in this situation is whether the words that were used demonstrated sufficient intention to make a will. It is unnecessary for the validity of a privileged will for the testator to know that he was making a will; what is required is that he intended deliberately to give expression to his wishes as to what should be done with his property in the event of his death.

The words used and the seriousness with which the deceased spoke at the time, combined with the reliability of the witness to carry out the deceased’s wishes help to establish and satisfy the test of intention.

It is important to note that the testator of the Will can also be a minor, which is crucial, given that many troops are ordered into combat before they reach the age of 18.

A privileged Will can be made as soon as orders are received that a person is to be posted in an operational area. During that posting, the maker of the Will remains 'privileged' and can revoke the Will informally; however once the serviceman finishes their post the Will remains valid in the same way as a formal Will, and the privilege no longer applies. Thereafter, the Will must be revoked formally.

As a member of the Forces Law network of Solicitors, we are able to advise you on all aspects of making a Will and inheritance tax planning.

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