The Gazette 1944-46

HISTORICAL DOCUMENTS.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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