Soldiers' Wills

DOIhttp://doi.org/10.1111/j.1468-2230.1949.tb00119.x
AuthorD. C. Potter
Publication Date01 Apr 1949
SOLDIERS'
WILLS
BEFORE
1677
the general rule of Ecclesiastical law was that everyone
had power to make a will of personalty by a simple oral declaration,
no
form whatever being required.
It
was partly in order to suppress
the perjuries which such a rule must doubtless have encouraged
that the Statute of Frauds was passed in
1677.
That Act set out
elaborate requirements of form for both written and oral wills of
personalty, but by section
22
granted
to
soldiers and sailors in
certain circumstances the original wide power
of
testation that had
existed for everyone before the Act. This same power was again
preserved by the Wills Act of
1887,
which was intended
to
reform
and codify the whole law concerning wills. The proviso to section
11,
re-enacting the words of the earlier Act, runs as follows:
'
.
. .
Provided always, 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 making of this Act
'.
This power was extended to include real as well as personal estate
by the Wills (Soldiers and Sailors) Act, 1918, which also extended
'
soldier
)
to include
'
airman
'
and confirmed an unjusti5able rule
which had somehow developed, namely, that even minors,
if
soldiers,
had power
to
make
a
will.' Thus the statutory rule as
it
stands
today is that any soldier, being in actual military service, has power,
whatever his age,
to
make
or
to revoke
*
a will without observing
any form whatever.'
It
is the words
'
in actual military service
'
which have caused
trouble all along. Much
of
this is due
to
the. changed circumstances
of
military life, which is now vastly different from what
it
was
in
the time of Charles
11,
but nearly as much may be ascribed to
an
apparent unwillingness to apply the normal rules of statutory
interpretation.
For
instance, it has been said that we are to keep
separate the power itself and the reasons
for
it.J
With great respect,
however, it
is
submitted that the scope of an enactment can only
be
assessed by construing
it
in the light
of
the intention of the
Legislature; and in practice judges have regularly looked
for
the
intent
of
the Legislature when called
upon
to construe the words of
any statute. There can surely be no reason
to
apply any other rule
than the normal one, in the present case.
Various reasons have been suggested
for
the rule,
or
'
privileget'.
1
The
courts gave minora
the
ower even though
the
Wille
Act
expremsly
deprived them
of
it
I
See
Re
$ernhe?
[1918]
$4
Ch.
82.
2
Bee
Re
Cossage
[lWl]
P.
194.
a
Sailore
have
a
similar
privilege,
hut
no
further
mention
of
it
is
made
in
thil
article.
Per
Denning
L.J.
in
Re
Wingham
[l948]
9
All
E.R. 908.
188

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