Soldiers' wills can be complicated
09 I 09 I 09
Soldiers' wills
can be complicated
Matthew Evans
A bitter dispute over an
alleged Last Will and Testament of a British Marine killed in
Afghanistan has recently made the headlines and brings 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, deny 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.
Despite the involvement
of John Hutton, the then Defence secretary and Defence Minister
Kevan Jones, the matter currently remains unresolved and could well
result in expensive and acrimonious legal proceedings.
Disputes over Wills of
members of the armed forces are not uncommon and Hugh James has
recently 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.
Please see the following pages for more information on our wills
service and what Hugh James can do for the armed forces:
For further information
contact:
Contact
Matthew
Evans
Senior Associate
E Matthew.evans@hughjames.com
T 029 2066 0562
