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HISTORICAL DOCUMENTS.
THE Irish Manuscripts Commission was set up
for the purpose,
inter alia,
of reporting on the
location, extent and nature of historical docu
ments relating to Ireland. The loss of so many of
our national records in the past makes it the more
necessary to save what is left. The present demand
for waste paper endangers some material of this
nature in private keeping. In 1929 and again in
1939 the Commission issued a circular to solicitors
practising in this country to invite their help'in
locating old rentals, maps and other documents ;
pleadings in old law-suits ; certified copies of old
wills, probates, patents, etc., the originals of
which are now lost. The Commission—already
indebted to all who responded to the circulars,
and to those who have facilitated the Commission's
Examiner of Local and Family Archives in recent
years—renews its request that Members of the
Incorporated Law Society would continue to
further historical research by notifying the exist
ence of any additional historical material that may
come to their notice.
SOLDIERS' AND SAILORS' WILLS.
A MEMBER of the Society has drawn attention to a
case recently decided in England in which oral
instructions for a will given by a soldier in England
were held to constitute a soldier's will for the pur
poses of Section 11 of the Wills Act, 1837. By that
section it was enacted that any soldier 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 passing of the Wills
Act. The case referred to by our member was
summarised in
The Times
newspaper of 14th
November, 1944.
"MR. Justice Bucknill, in giving judgment, said
that the defendants alleged that the verbal will
was valid on the ground that at the time when it
was made the testator was on actual military
service. The plaintiff denied that the testator made
a valid verbal will, and that he was on actual
military service. The testator was called to the
Army in November, 1939, and was posted to a
combatant mechanised unit. He served continu
ously as a soldier in England until he was killed
by an enemy bomb at Coventry on April 9th, 1941.
On October 2, 1940, he had called on the family
solicitor at Bognor, and said that he was about to
be sent overseas and thought that he should make
a will. He gave the solicitor instructions for a will,
and called next day and repeated the instructions.
On October 8 the solicitor posted to the testator
a copy of the will for his perusal and approval.
On October 15 the testator acknowledged the re-'
ccipt of the copy of the will. The solicitor wrote
to the testator on October 22 forwarding an en
grossment of the will, and on January 27, 1941,
again wrote, asking for particulars of execution
of the will. The testator replied : "Regarding the
will of myself, I am waiting to return to my regi
ment to get my own officers to sign same." After
his death no trace was found cither of the will or
the draft will.
His Lordship said that he was satisfied that the
testator had made up his mind quite definitely
as to the disposal of his property when he gave
the verbal instructions on October 2, 1940, and
that he then "intended deliberately to give
expression to his wishes as to what should be
done with his property in the event of his death"
—to quote the words of Mr. Justice Horridge in
In
re Stable—Dalrymple v. Campbell (35
The
Times
L.R. 66, at p, 67 ; [1919] P. 7. at p. 9).
Whether the testator was on actual military
service so as to bring the case within section 11
of the Wills Act, 1837, which referred to the
privileged will of a soldier, Mr. Justice Bucknill
said that at the material date the testator was a
whole-time soldier liable to be called on at any
moment to take part in operations against the
enemy. In October, 1940, there was an immediate
risk of such a call being made on him, a7id a
serious risk of fighting taking place in England.
Enemy forces were in occupation of the coast of
France immediately across the English Channel,
and they were attacking England from the air
and preparing to invade this country. He (his
Lordship) must assume, in the absence of any
evidence to the contrary, that as a soldier on the
strength of the regiment the testator was in the
same position
qua
actual military service as the
regiment itself was.
Having
reviewed
the authorities on
this
subject during the present war, his Lordship said
that, in his view, a man when serving continu
ously as a soldier in the Army in time of war at a
place where an attack by the enemy might
reasonably be expected was on "actual military
service." The testator came within that category,
and therefore his verbal will made on October 2,
1940, would be admitted to probate."
The Courts
have
also
admitted
to Pro
bate wills of minors engaged as soldiers on
actual military service or as mariners at sea.
In the standard text books it is stated that such
wills of personalty by soldiers or mariners may be
validly made at any age after the age of fourteen.
The latest reported case on this point is Estate
of W. A. Anderson, deceased. (78 I.L.T.R. 172).
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