I. PRESENT LAW

11.1 Section 3 of the Wills, Probate and Administration Act, 1898 defines “privileged testator” to mean:

(a) a soldier of any country or a member of an air force of any country, being in either case in actual military service;

(b) a member of a naval or marine force of any country, being so circumstanced that, if he were a soldier, he would be in actual military service; or

(c) a mariner or seaman being at sea.

It will be seen that each arm of the definition involves proof of a particular status (eg soldier and activity (eg being in actual military service). There is an extensive case law expounding the scope of each status and activity.¹ A testator maybe privileged regardless of his or her age. We discuss the law relating to wills made by minors, other than privileged testators, in Chapter 12.

11.2 Various sections of the Act spell out the “privileges”, doing so in the form of relieving persons from compliance with particular formalities generally imposed upon testators. Thus the wills of privileged testators do not have to be in writing or executed in the presence of witnesses, or otherwise in the manner and form prescribed by sections 7 and 8;² nor do the formalities prescribed for alterations³ or revival⁴ apply to privileged testators Privileged testators may revoke their wills simply by declaration of an intention to do so;⁵ and the avoidance of gifts to attesting witnesses does not apply to the wills of those privileged testators who choose to involve attesting witnesses in their will-making.⁶

11.3 A will made by a privileged testator remains valid and effective until it is properly revoked. The termination of the testator’ s privileged status will not effect a revocation⁷ This can mean that long after a war probate can be granted to a letter containing a testamentary provision where it was written by a privileged testator during hostilities.

11.4 Another section of the Act confers the right to make a will upon minors who have the status to qualify them as privileged testators but who are precluded from enjoying the full “privileged” because of the absence of the relevant activity. Thus, a soldier of any country, a member of a naval marine or air force of any country or a mariner or seaman may make a will notwithstanding that he or she is a minor,⁸ but such person will have to comply with the statutory formalities for due execution unless, at the time of making the wilt he or she was also “in actual military service” or otherwise acting so as to qualify as a privileged testator.⁹

II. SOME HISTORICAL AND COMPARATIVE MATERIAL

A. Roman Law

11.5 The Roman law of succession was complex and the execution of wills involved rigid formalities or rituals.¹⁰ But from the time of Julius Caesar soldiers and sailors were granted the special privilege of being entitled to make a valid will without any formalities.¹¹ It included making a written will with no witnesses oran oral will whose contents could be proved by one witness (during some periods at least two witnesses were required). The Emperor Trajan legislated that a person benefiting under a privileged military will could not prove its contents as the single witness. Initially, soldiers on active service were entitled to make military wills, but Justinian restricted the privilege to the period of actual military service whilst in camp.¹² Such a will remained effective during the period of military service and for one year after the soldier’s honourable discharge. A military will became ineffective immediately upon a dishonourable discharge. The privilege extended to “the secretaries and orderlies of officers, and camp followers had the privilege when on expedition”.¹³ Seamen were entitled to the privilege whilst members of the naval forces and on board a ship.

B. English and Australian Law

11.6 Despite the introduction of statutory formalities into the law of wills in 1540 (para 2.1), soldiers and seaman retained their privileged status. The reason seems to be a combination of the view that these classes of men were more ignorant than the general populace, and the view that the risks undertaken by them merited the conferral of certain privileges. In 1590, Henry Swinburne wrote:

For as much as soldiers being better acquainted with weapons than books, are presumed to have so much the less knowledge in the laws of peace, by how much they are the more expert in the laws of arms. For as much also as noble warriors, in the defence of their country, do often times undertake perilous enterprises, wherein they lose their lives or their limbs; and seldom escape without wounds or bodily hurt As well therefore in regard of their small skill, in our peaceable laws on the one side; as in recompense of their great perils and hurts in furious and cruel battles, on the other side: They enjoy many notable privileges, and benefits in the making of their testaments (especially by the Civil Law) which are not allowed unto others.¹⁴

11.7 Chapter 22 of the Statute of Frauds 1677¹⁵ expressed this privilege from compliance with the general formalities imposed by that Statute in the following manner:

Provided that notwithstanding this Act any soldier being in actual Military Service or any Mariner or Seaman being at Sea may dispose of his Moveables, Wages and Personal Estate as he or they might have done before the making of this Act.

11.8 The current English legislation, the Wills Act 1837, codified the law of wills formalities and virtually repeated the provision contained in the Statute of Frauds:

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.¹⁶

This formulation was adopted in several Australian jurisdictions. To remove doubts the Act was amended (in the United Kingdom in 1918 and in New South Wales in 1940¹⁷) to extend the privilege to testators under twenty-one, and ensure that it applied in relation to real as well as personal estate. It also was extended to “any member of His Majesty’s naval or marine forces, not only when he was at sea but also when he was so circumstanced that, if he were a soldier, he would be on actual military service”. When the relevant provisions of the New South Wales Act were recast in 1970,¹⁸ no change of substance was enacted other than the extension of the privilege to members of the naval, marine and air forces of any country.¹⁹

11.9 The existing provisions relating to privileged testators in the different Australian States and Territories have been correctly described as “divergent to the point of bewilderment.²⁰ There is no common definition of privileged testator (see Appendix D) and there are material differences in the extent of the privileges available.²¹

III. DIFFICULTIES WITH THE PRESENT LAW

A. Determining who is a privileged testator

11.10 Extensive litigation has been spawned by the need to construe and apply the bald terms of the definition of privileged testator. With technological developments in warfare and the continued trend towards “total war” more and more people arguably qualify for inclusion as privileged testators. The courts have had to decide issues such as whether “soldier” includes army doctors, nurses, chaplains, or members of the reserves; whether a person is in “actual military service” when in training awaiting embarkation, a prisoner of war, or a member of a peace keeping or occupying force.²² There is every reason to believe that, in the unfortunate event of Australia being involved in further hostilities, the application of these provisions would continue to give rise to litigious disputation.

B. Proof of the will

11.11 Since privileged testators may make oral wills and there is no requirement that the terms be reduced to writing or otherwise recorded,²³ vast opportunities for mistaken or perjured evidence arise. These are naturally exacerbated if the statements sought to be probated were made during armed conflict, in which event the attention of the relevant witness or witnesses may be expected to have been distracted. For such reasons the wills of privileged testators serve very poorly the important evidentiary and channelling functions to which we drew attention in Chapter 2.

C. Construction of the will

11.12 In addition, the permitted informality allows oral or written statements that can throw up difficult questions of construction At least some of these would be avoided if the law required the testator to reduce his or her wishes to writing with the “ritual” usually attendant upon compliance with the general execution formalities.

D. Proof of testamentary intention

11.13 More significantly, the informality attaching to privileged wills has brought with it difficulties in determining whether particular written or oral statements were made with the necessary intention to operate as a will (testamentary intention). That has caused uncertainty and considerable litigation. This is not surprising when it is considered that oral statements as casual as “I want to leave everything to Miss Tipton²⁴ have been admitted to probate. Where privileged testators are concerned, the courts have held that it is not necessary that the deceased believed that he or she was making a will.²⁵ It is enough that the deceased intended deliberately to give expression to his other wishes as to the disposition of property in the event of his or her death.²⁶

11.14 The cases disclose difficulties in dealing with expressions of past conduct or future intention, contained in diverse styles of communication or uttered on a variety of occasions, when attempting to distinguish between those held to be testamentary and those which were held to be ineffective.²⁷ Generally expressions of future intention and even instructions for the preparation of a will have been held effective. For example, a statement that “Of course, should we ever leave New Zealand, I will make a will leaving all to you”²⁸ and a document described as a “memorandum of my intended will”²⁹ have each been admitted to probate. In Godman v Godman³⁰ Lord Sterndale MR said:

The testator did not purport nor did he in my opinion intend to effect that alteration by means of the letter alone, but he contemplated the preparation and execution of a formal document, probably a codicil, for that purpose. There is however as I have shown ample authority for the proposition that a document which is in terms an instruction for a more formal document may be admitted to probate if it is clear that it contains a record of the deliberate and final expression of the testator’s wishes with regard to his property. If a long time has elapsed since the writing of the informal document, and if, during that time, the testator had opportunities of obtaining the formal document of which he did not avail himself, that affords evidence that he had changed his mind; but if he dies very soon without having had such opportunities, the presumption is that the document is the last expression of his wishes.³¹

11.15 The uncertainty created by these propositions is self-evident It is instructive to contrast statements that have been held to be non- testamentary In In the Estate of Knibbs,³² the statement “If anything ever happens to me, Iris will get anything I have got”, was not effective as a privileged will, because it was made in the course of casual conversation between the barman of a ship and a fellow employee at the closing time of the bar. Another basis on which such statements may fail was expressed by Lord Sterndale MR:

A document or a conversation which is such that it only speculates on the wishes of the person making the statement, or writing the document, is not sufficient It must be something which is, in however informal a manner, an expression of his wishes as to the disposition of his property.³³

11.16 It appears to us to be highly unsatisfactory that testators can be held to have made a testamentary statement or instrument even though they were unaware of the consequences of the statement or instrument and even though there was no testamentary intention (in the usual sense) at that time. There is no cogent basis for relaxing the usual requirement that testators should engage in a rational and conscious will- making exercise, even when making a privileged will.

E. Alteration and Revocation

11.17 Similar lack of formalities and looseness as to proof of intent attach to the alteration or revocation of a will when the testator is privileged Thus, a draft and unexecuted will, prepared by a fellow prisoner of war who was a lawyer, was held to be valid as a privileged will and to have revoked an earlier will.³⁴ Unattested alterations, which appear on a will which was executed whilst the testator was privileged, are presumed to be effective and to have been made during the continuance of the privilege.³⁵

11.18 These rules create the rather undesirable consequence that a formally executed will may be revoked by informal oral statements, including statements made without clear proof that the deceased believed he or she was involved in revoking a will.

11.19 A further matter to be noted is that, unlike the position in Roman law, the will of a privileged testator remains effective until altered or revoked, for an unlimited period. There are reported instances of informal wills of privileged testators being admitted to probate when the testator died over 20 years after having made the relevant will.³⁶

IV. EXAMINING THE RATIONALE FOR THE PRIVILEGE

11.20 Some commentators have argued that there is no longer a rational basis for conferring the status of privileged testator upon a segment of the community.³⁷

11.21 In the past the privileges conferred on this class of testators have been justified on various grounds:

• the relatively low level of education of privileged testators,
• the unavailability of consultation and professional advice to military personnel, especially when they were on campaign or in combat (they were said to be inops consilii, ie without advice);
• the high risk of death faced by testators when in combat or at sea in comparison with the community generally,
• the privilege is conferred as a reward and incentive to engage in a socially beneficial occupation (cf para 11.6);
• soldiers and others facing battle need the comfort of knowing that, should they not return, arrangements have been made for their affairs;
• the need to ensure that minors who were called upon to serve in a military capacity and thereby risk early death had the “adult” privilege of making and revoking wills.

11.22 Many of these reasons, if ever fully justified, are quite inappropriate to modern conditions of warfare, service in defence or merchant marine forces, or sea travel. The concept of a special class of persons who alone are exposed to the dangers of active service is no longer true. Many civilians are placed in positions that would call forth one or more of the justifications enumerated in the previous paragraph, and not necessarily in time of war (eg policemen, firefighters). Sea travel in peace time is relatively free from danger. The general level of literacy and education in the community as a whole is markedly higher than in 1677. Will-making is nowadays regarded as a relatively simple activity and the ready availability of printed will forms attests to a widespread belief in the community that there is no necessary need for skilled advice. Now that persons over 18 can make wills the need for conferring a privilege upon infant testators who are to go to war has largely passed and, in any event, s6 of the Wills, Probate and Administration Act, 1898 expressly allows wills to be made (subject to compliance with due formalities) by minors who are soldiers, members of a naval, marine or air force, mariners or seamen In any event the modern rules governing succession of persons who die intestate when coupled with the Family Provision Act, 1982 tend to ensure that the failure to make or revoke a will does not necessarily defeat the proper moral and social obligations of deceased persons.

11.23 It has in our view truly been said that “the privilege is not that of the soldier necessarily, but rather that of other persons who have kept letters written to them from friends in the Army.³⁸ The case law referred to in paras 11.13,11.16 illustrates that the informality of many wills of privileged testators creates difficulties of proof and determination of testamentary intent and construction: the evidentiary and channelling functions are served very poorly.³⁹ A further consequence of the existing law is that “on the death, at whatever time, of any person who wore uniform in the war, it will be open to anyone brazen enough to be undeterred by the risk, to assert that the deceased once made a verbal will in his favour, or a will on a scrap of paper, since lost, and this will be possible even where the deceased made a solemn will before entering the uniformed force.”⁴⁰ Similarly, the will of a person made in the course of a casual conversation hardly serves the cautionary or ritual function.

11.24 If the general statutory formalities serve useful functions in the interests of testators and the administration of justice generally, the question should be asked, “why are these benefits withheld in the case of the wills of privileged testators?” To point to history, when circumstances have changed so much, is hardly an adequate answer. We agree with Jeremy Bentham who suggested in the early nineteenth century that it was not correct to regard it as a privilege to be absolved from formalities in will-making.

As if it were a favour done to a man to enable an imposter to dispose of his property in his name! - as if the exception could be beneficial, unless the rule were mischievous.⁴¹

11.25 We made enquiry as to the practice of the Australian Defence Forces in relation to assisting persons in the armed services to make will.⁴² In each of the three Services, recruits have access to legal officers who provide general advice about the need to make wills and assist in the preparation of drafting of wills. When executed the wills are held in safe custody until the members’ discharge.⁴³ On this basis service personnel are better served than their civilian counterparts Given the complexities of modern warfare, we would doubt that these standards would fall unless a future war were so catastrophic as to lead to virtually general mobilisation, in which event the need for confining the privilege to particular classes of testators would no longer apply anyway.

11.26 In view of these “privileged” enjoyed by the modern service man and woman, it maybe questioned to what extent the law should facilitate informal testation. One argument that has been advanced is the need to ensure that persons in the heat of battle (eg in the trenches or on a landing vessel and about to attack) have the facility to vary a will not then held by them. Of course it is possible to revoke a will by the execution of another document In any event, whilst it is possible to think of cases of genuine hardship, we consider that, on the whole, the law should not encourage or facilitate will-making in such circumstances. At such time the testator’s witnesses are unlikely to be very attentive and the testator himself may have an imperfect knowledge of his family and friends or may indeed be prone to exaggerated views and misconceptions about the true state of affairs “back home”.

11.27 Whilst it may also be argued that the law should enable persons who are wounded and facing imminent death to make, alter or revoke wills without undue complication, we do not think that the members of the armed services are, in this regard, any differently placed than their civilian counterparts who in time of peace or war may wish to make, alter or revoke wills. Indeed it is likely that those who would be witnesses to “death-bed” wills made by members of the armed services in combat are likely to be more distracted than persons similarly placed in relation to persons dying in peace time. Our general views about oral or holograph wills are set out in Chapter 4. In view of the dubious benefit of the “privileges” discussed in this chapter, and taking into account our recommendations about a general dispensing power, we do not consider that this factor outweighs the general arguments against allowing “privileged” testation.

11.28 The retention of the privilege by sailors simply because they are “at sea” has little to commend itself, bearing in mind that it has been construed as extending to wills made on board ships permanently stationed in a harbour.⁴⁴ The modern sailor seldom endures special risks and has the advantages of communication which leave him or her in no different position than many other classes of workers in remote occupations.

11.29 Various law reform agencies have considered the issue. Whilst pointing to anomalies in the present law, they have generally recommended in favour of retention of the present law. In the United Kingdom the Law Commission expressed the view in its 1966 Working Paper entitled Should English Wills be Registrable?⁴⁵ that there would be no question of taking away or reducing these important and ancient privileges. The Latey Committee on the Age of Majority reported in 1967 that the privilege should simply apply to all members of the armed forces regardless of age or whether they were on “actual military service.⁴⁶ The Committee adverted to the practical problem of servicemen forgetting to revoke privileged wills after leaving the service, but preferred simply to urge military authorities to remind members of the services about the revocation of wills when leaving the services.⁴⁷ In its 1978 report on The Law Relating to Succession, the Law Reform Commission of Queensland doubted the value of these special privileges, originally allowed when soldiers were illiterate and lacked access to legal advice. However, the Commission’s ultimate recommendation was that the privilege be extended to prisoners of war and internees.⁴⁸ The Queensland Act was amended accordingly.⁴⁹ In 1980 the Lord Chancellor’s Law Reform Committee in the United Kingdom heard evidence from several witnesses who thought that privileged wills were no longer necessary or justified, but ultimately “on balance” recommended the retention of the privilege in its present form.⁵⁰ In its extensive report on The Making and Revocation of Wills in 1981, the Law Reform Commission of British Columbia described the law in this area as “needlessly complex and idiosyncratic”.⁵¹ It recommended the abolition of the privilege with reference to mariners and seamen at sea.⁵² Finally it may be noted that under the American Uniform Probate Code published in 1969 the privilege is abolished.

11.30 The broad options for reform are:

• abolition of the privilege;
• narrowing of the benefits of the privilege, e.g. by excluding oral wills, by requiring some form of certification, or by providing for automatic revocation some time after the cessation of the privileged status;
• curtailing the privilege, eg by excluding mariners;
• broadening the privilege, eg by excluding the vague concepts of “actual military service” and “at sea”;
• extending the privilege to civilians placed in emergency situations;
• clarifying aspects of the privilege.

No doubt there are other alternatives.

V. RECOMMENDATION

11.31 Before stating our recommendation, four preliminary matters should be addressed.

11.32 First, the need for uniformity. Several authors and Law Reform Commissions have raised this issue, suggesting that in a federation such as Australia there is a need for uniformity between States and Territories. Whilst there are some valid arguments in favour of uniformity, the fact remains that in Australia there is a large measure of lack of uniformity (para 11.9). There has been some reluctance in several jurisdictions to alter the status quo, not-withstanding appreciation of the lack of an adequate rationale for allowing privileged wills, although the moves in other states to introduce some sort of general dispensing power applicable to all classes of wills (see Chapter 6) may be seen as a trend towards uniformity in an area that is not entirely unrelated to privileged wills (cf para 11.34). Furthermore, if as we think, the privilege is rather illusory and in any event serves poorly the proper interests of testators and the administration of justice, the time has come for New South Wales to show the way in proposing a clear-cut reform.

11.33 Secondly, whether the privilege should be extended. There appears to be no cogent reason for extending the privilege to other situations of danger, and there would be the practical difficulty of legislating adequately to cover relevant situations without giving rise to unnecessary opportunities for legal disputes. If the rationale for privileged wills is unsound, as we argue, then the privilege should either be abolished or be extensively restricted.

11.34 Thirdly, if our recommendation for the introduction of a general dispensing power (Chapter 6) is adopted, then all classes of testators will be given the opportunity, in an appropriate case, to make informal yet valid wills. Subject to the threshold requirement of a document (see para 6.28) no departure from the standard formalities will be fatal if the court can be satisfied that the particular will of the particular testator represents his or her testamentary intentions.

11.35 Fourthly, we have obtained and had regard to the views of the Australian Defence Forces in the course of formulating our views.⁵⁴ The attitudes of the three Services, when initially approached, as to the need for the privilege differed considerably, although each opposed abolition because of the need to accommodate the exigencies of a wartime situation It was pointed out that the present peacetime facilities for will-making may not be available in time of crisis. Some of the reasons expressed for opposition to abolition (eg that witnesses may be dead or untraceable and that serving minors ought to be able to make wills) suggested a lack of understanding of the present law relating to the wills of civilians⁵⁵ and minors serving in the armed forces.⁵⁶ But the basic objection initially voiced to outright abolition - the desirability of giving serving members a right of testation without regard to statutory formalities when they are placed in the stresses of combat - was a significant one. Nevertheless, we believed that the reasons given by us in paras 11.22-11.28 for adopting the position that all testators and their beneficiaries should be placed in the same position, with recourse to the judicial dispensing power in appropriate cases of non-compliance with statutory formalities, outweighed the initial objections of the armed services. As we pointed out in para 1.9, our draft Report which contained this chapter in virtually identical form to the final form now appearing was submitted to the Military Law Sub-Committee of the Department of Defence with whom we had previously consulted to ascertain the views of the Australian Defence Forces. The final response from that Sub-Committee was that, while there were some reservations concerning the level of legal assistance available to defence members in time of active service, there was general agreement with the views of the Commission. That agreement was expressly subject to the general dispensing power similar to the South Australian model recommended in Chapter 6; to our proposal that the civil onus apply (para 6.34); and to our proposal that the rules of evidence be amended so as to allow hearsay evidence of the testator’ s statements and other extrinsic evidence to be admissible (paras 6.35-6.37).⁵⁷

11.36 For the reasons discussed in Part IV we recommend that no class of persons should have the status of being privileged testators.

11.37 The question of what, if anything, should be done about privileged wills existing at the commencement of the legislation which we propose, or any” privileged revocation effected before then, is dealt with in para 13.3.

FOOTNOTES

1. See, generally Hardingham, Neave & Ford. Wills and Intestacy in Australia and New Zealand (1983) paras 403-404: and Harland. Law of Minors (1974) chapter 12.

2. Section 10.

3. Section 18(2).

4. Section 19(2).

5. Section 17(3)(c). noting that this must be done while the testator is privileged.

6. Section 13(2).

7. In Will of Thompson (1910)10 SR(NSW) 406. Indeed if the testator ceases to be privileged revocation must be effected by the usual means.

8. Section 6(2)(b)(c) and (d).

9. Since the commencement of the Minors (Property and Contracts) Act. 1970 s10 has been confined to the form of wills: see New South Wales Law Reform Commission Report on Infancy in Relation to Contracts and Property (1969) p101 n56.

10. E Schulz, Classical Roman Law, at pp240-243.

11. This topic is covered in more detail in Leage Roman Private Law. 3rd ed (1961) at pp242-243; R W Lee, The Elements of Roman Law, 4th ed (1956) at p190.

12. Institutes of Justinian, Book II Title XI para 287.

13. Wahlen, Soldiers’ and Sailors’ Wills: A Proposal for Federal Legislation (1948) 15 University of Chicago Law Review 702 at p704.

14. A Brief Treatise of Testaments and Last Wills. para xiii.

15. The draftsman of the relevant section of the Statute of Frauds claimed to have obtained for English soldiers the full benefit of the testamentary privileges of the Roman army but the propriety of looking to the civil law as an interpretative aid has been severely challenged: Re Booth [1926] P 120; Re Wingham [1949] P 187: Potter, Soldiers Wills (1949) 12 Mod Law Review 183 at p184.

16. Section 11. This was adopted in New South Wales in 1840 and became s10 of the 1898 Act.

17. Wills (Soldiers and Sailors) Act (UK); Trustee and Wills (Emergency Provisions) Act. 1940. (NSW) s13.

18. By the Minors (Property and Contracts) Act. 1970 which commenced to operate on 1 July 1971.

19. See the New South Wales Law Reform Commission Report on Infancy in Relation to Contracts and Property (1969) p100 n 52. See also note 9 above.

20. Queensland Law Reform Commission. Report on the Law Relating to Succession (QLRC 22) (1978) p10.

21. See Hardingham, Neave and Ford, note 1 above, paras 405-406.

22. See generally the authorities referred to in note 1 above.

23. In contrast with the old law relating to nuncupative wills generally see paras 2.3-2.4

24. In re Lowe [1949] VLR 169.

25. Ibid, In the Estate of Knibbs [1962] 2 All ER 829; In the Estate of Lewis [1974] 2 NSWLR 323 at 330-331.

26. In the Goods of Spicer [1949] P441.

27. See generally Hardingham, Neave and Ford. note I above. para 409.

28. In re Martin [1917] NZLR 219, in a letter from a soldier to his parents.

29. Barwick v Mullings (1829) 2 Hagg Eec 225 (162 ER 842).

30. [1920] P 261.

31. Id, at 271.

32. [1962] 2 All ER 829.

33. In Estate of Beech [1923] P46 at 61.

34. In Re Wakeling [1946] VLR 295.

35. In the Goods of Newland [1952] P 71.

36. Re Booth 119261 P 118; Re Ward [1966] QWN 15. Mellows, The Law of Succession (1983) 4th ed at p79 suggests that the period for which privileged wills remain effective should be limited to twelve months after the testator has ceased to be on actual military service or at sea.

37. A L Goodhart in (1949) 65 LQR at 7 and 300; F C Hutley, Privileged Wills(1949) 23 AL] 118; Potter. Soldiers Wills(1949) 12 Mod LR 183; Wahlen, Soldiers’ and Sailors’ Wills. A Proposal for Federal Legislation (1948) 15 University of Chicago Law Review 702; Davey, The Making and Revocation of Wills (1980) Conveyancer 64 at pp70-72.

38. Potter, note 37 above at p190.

39. Cf chapter 2.

40. Potter. note 37 above at p190.

41. Works. Bowring’s ed, Vol 6, p472 (quoted by A L Goodhart in (1949) 65 LQR at p7.

42. The information summarised in this paragraph was made available in a letter to the Commission dated 11 June 1985 from Air Commodore C 1 Pound of the Department of Defence, Canberra.

43. In the Air Force 15000 of the 23000 currently serving members have lodged wills: ibid. Cf para 4.7 of this Report.

44. In the Goods of M’Murdo (1868) LR 1 P & D 540. In relation to the wages and personal effects of deceased seamen the Minister may decline to deliver them up if the will is not in writing and executed with certain formalities. Seamen Act, 1898 (NSW). s64; Navigation Act 1912 (Comm) s157.

45. Para 40.

46. [1967] Cmnd 3342. para 417.

47. Id. para 418.

48. Report at pp10-11.

49. Succession Act 1981. s16.

50. Report on The Making and Revocation of Wills Cmnd 7902 para 2.21.

51. At p22. See also Appendix H of that Report.

52. Ibid.

53. As to the quasi-privilege afforded to a soldier et al to make wills (in due manner and form) notwithstanding that he or she is a minor (para 11.4) we make recommendations in the next chapter.

54. On 29 January 1985 the Commission requested the Chairman of the Military Law Sub-Committee of the Department of Defence to provide certain statistical and other information and to express views on various options for reform including abolition of the privilege entirely imposition of certain minimum formalities and provision that privileged wills should be revoked automatically after a certain period or event. The Chairman, Air Commodore G J Pound responded by letter dated 11 June 1985 providing information and views that had been obtained from the various legal Directorates within the Services.

55. The death or unavailability of an attesting witness does not affect the validity of the will of a non- privileged testator. Indeed the presumption of regularity means that such a will, if apparently duly executed, is afforded validity without enquiry into matters such as the order of signing which might reveal irregularities.

56. See para 11.4 of this Report

57. Letter dated 13 January 1986 from the Chairman of the Military Law Sub-Committee. Department of Defence, Air Commodore G J Pound.