What Is A Privileged Will?
Posted on 12th May 2020
As you look out the large windows across the front of our solicitor’s office in Longridge, you can see many historic legacies of the quaint town; the old railway, which has since been turned into a lovely café, the civic hall, home to the once-a-month car boot sale and the once-a-week market, but what often catches the writer’s eyes is the beautiful memorial ‘garden’ in memory of Remembrance Day.
As a country, we are all humbled by the great deeds of those who have, and continue to, risk their lives for our country, putting themselves on the front line.
As expert Wills solicitors in Longridge, our team prepare Wills for people on a day-to-day basis, ensuring that they are prepared and signed in line with the requirements under the Wills Act 1837.
What is interesting, however, is that there are special rules which can apply to Armed Forces personnel, who don’t necessarily have the advantage of being given time to prepare their Wills in an official setting, such as that of our Wills Solicitors in Longridge. These special rules, pertain to privileged wills.
What is a Privileged Will?
A Privileged Will is that made by a person who is in active military service, meaning that they are either working in an operational area in the Forces, or they are soon to be posted to one. You don’t necessarily have to be a soldier to make a Privileged Will: Civilian support staff can also make one, if they are posted to an operational area.
How does a Privileged Will differ from a normal Will?
Under the Wills Act 1837, a normal Will must be in writing, and signed by the person wanting their own wishes to take effect (also known as the Testator), in the presence of two, independent witnesses. The person making the Will, and the witnesses, must all be over the age of 18, and have mental capacity.
On the other hand, a Privileged Will is more of an informal Will, which complies with Section 11 of the Wills Act 1837, not the normal validity provisions, but can nevertheless still be a valid Will. It can be written down, but it may also be an oral declaration. There doesn’t necessarily need to be any witnesses, although the oral Will must usually be said in someone’s presence, as otherwise there would be no record of it.
The other difference is that the Executor of the Will (the person who is appointed to deal with the deceased’s Estate, which you can read about in our Wills Solicitors in Longridge’s blog, here) can be a minor (as some troops may be minors when they are ordered into combat).
Why is it called a Privileged Will?
Well, the maker of the Will is the ‘privileged’ person, and remains so throughout their service in an operational area. During their posting, they can revoke their Will informally at any time, however, once their post finishes, and they are no longer in an operational area, their privilege ends, and they must formally revoke their Privileged Will, if they want to.
How can you revoke a Will?
At the start of every Will, our team of Wills Solicitors in Longridge includes a clause revoking any previous Wills, unless there is a foreign Will, in which case this could be referred to specifically. Therefore, if a Privileged Will needs to be revoked after the person’s posting in an operational area has ended, they could make a new Will using our Wills Solicitors in Longridge.
Alternatively, a written Will can be revoked by destroying it with the intention of revoking it (so, just because a person accidentally rips a Will, it doesn’t mean they revoked it, if the intention to revoke it was not there).
How do I know if someone has made a Privileged Will?
Well, it won’t always be easy. If you’re loved one has died serving in the military in an operational area, how are you to know they have made a Privileged Will if they didn’t tell you?
You could make enquiries with colleagues of the deceased, and see whether they have any recollection about an expression of wishes by the deceased, or ask whether there were any written wishes.
In the case of Re Estate of Ashley Edward Servoz-Gavin, Mr Servoz-Gavin passed away on 14 September 2009, whilst serving in the military. A member of the family applied for Letters of Administration, based on Mr Servoz-Gavin having left no Will, however, some time later, it became apparent that in 1985 and 1990, the deceased may have made a Privileged Will.
The cousin of the deceased, Christine, gave evidence that Mr Servoz-Gavin had expressed his wishes to her on two occasions that if anything were to happen to him, he would want his Estate to pass to his aunty, who had taken him in when his mother had died, giving him a home in England between voyages.
The Court accepted Christine’s evidence, and pronounced in favour of Mr Servoz-Gavin’s 1990 Will.
Whilst in normal cases it wouldn’t necessarily mean anything that a person had made oral expressions, with Privileged Wills, this is acceptable.
How can I make a valid Will?
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