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TOPIC 4 - WILLS - PRIVILEGED WILLS & DONATIO MORTIS CAUSA PRIVILEGED WILLS Read: Borkowski Chapter 9 Mellows Chapter

7 Sawyer pp 114 - 120 Parry & Clark pp 87 - 91 S.11 Wills Act 1837 provides 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 Act", which means that such person may make a will without the formalities. However before the Wills Act 1837 such a person could only dispose of personalty without formalities however since S.3 Wills (soldiers and Sailors) Act 1918 realty may be disposed of as well therefore any type of property may be disposed of by such a will as well as the appointment of guardians. Soldiers On Actual Military Service Soldier Any person doing the job of a soldier. In Donaldson's Goods (1840) 2 Curt 386 a member of the East India Company army was held to be within the meaning of the word and in Re White's Application [1975] 2 NSWLR 125 a civilian given the status of a major in the United States Army was held to be able to make a privileged will by a New Zealand Court of Appeal. Actual Military Service Whether a person is in actual military service is a question of fact. The term is not directly referable to any military terminology e.g. it is not necessarily the same as being on "military service" which is a particular military status enabling a soldier to be eligible to be awarded certain decorations such as the VC. The meaning of the term has altered with the changing nature of warfare. Before 1939 a soldier had to be actually serving or about to serve overseas in a campaign. Therefore in White v Repton (1844) 3 Curt 818 a soldier in barracks was not entitled to make a privileged will because he could just as easily make one with the proper formalities. In Re Stable, Dalrymple v Campbell [1919] P 7 a soldier had to be under orders to go to the front before being eligible to make a privileged will. It is submitted that the circumstances of a soldier's death or the soldier's past military record should not be relevant to the issue as to whether he or she is in actual military service however in Re Spark's Estate [1941] P 115 a soldier killed in an air raid on the camp was held eligible to make a privileged will but in Re Gibson's Estate [1941] P118n an army

dentist killed in an air raid on his home was not. Also in Re Rowson's Estate [1944] 2 All ER 36 a WAAF was killed in an air raid on the depot and she was held eligible to make a privileged will and her past active service when she was mentioned in despatches was considered to be an important factor. Tests for what amounts to "actual military service" were put forward in Re Wingham [1949] P 187where a pilot on flying training in Canada was killed in a flying accident. At first instance he was held ineligible to make a privileged will because he was not actually in a theatre of war. However the CA held he was eligible. Cohen LJ put forward the test that the deceased was liable at any time to proceed to some area in order to take part in active warfare and that under these circumstances he was in actually military service. Denning LJ stated that "any soldier, sailor or airman is entitled to the privilege, if he is actually serving with the Armed Forces in connection with military operations which are or have been taking place or are believed to be imminent...It includes not only those actively engaged with the enemy but all who are training to fight him. It also includes those members so of the Forces who, under stress of war, both work at their jobs and man the defences, such as the Home Guard. It includes not only the fighting men but also those who serve in the Forces, doctors, nurses, chaplains, WRNS, ATS, and so forth.... whether they are in the field or in barracks in billets or sleeping at home. It includes them not only in time of war but also when war is imminent.... in case of doubt the serving soldier should be given the benefit of the privilege."

It appears from both earlier and later cases that Denning LJ's wider test is more likely to be accepted, see Re Rippon's Estate [1943] P 61 and Re Anderson's Will (1958) 75 WN NSW 334 where a New South Wales Court held that the privilege applied to a soldier under orders to go to Malaysia when a state of emergency had been declared and Re Jones [1981] Fam 7 [1981], 1 All ER 1 where acting in aid of the civil power to put down insurrection in Northern Ireland was held to be on actual military service. Mariners or Seaman At Sea Mariners or seaman This includes member of the Royal Navy, Re Yates's Estate [1919] P 93, a barman on a liner, Re Knibb's Estate [1962] 2 All ER 829, a female typist on a liner, Re Hale's Goods [1915] 2 IR 362. At sea This includes a ship permanently in harbour may be at sea, Re M'Murdo's Goods (1868) LR 1 P&D 540. but it does not include a seaman discharged from his ship before joining another, Re Rapley's Estate [1983] 1 WLR 1069.

S.2 of the Wills (Soldiers and Sailors) Act 1918 treats members of the Royal Navy and Marines as soldiers when they are on actual military service i.e. they may make a privileged will when not at sea. Airmen S.5(2) of the Wills (Soldiers and Sailors) Act 1918 provides that airmen may be treated in the same way as soldiers for the purposes of making a privileged will however it would appear that the provision only apples to members of the RAF. Extent of the Privilege The privilege enables the testator to make a will orally without formal witnesses although for obvious reasons there will have to be someone to witness the will! S.1 Wills (Soldiers and Sailors) Act 1918 retrospectively enables a person under 18 to make a privileged will. Such a person can revoke that will at any time whether on active military service or not. However he or she cannot make a new formal will until he or she has attained 18. A privileged will may also revoke an earlier formal will as in Re Gossage's Estate [1921] P 194. The mental element required for a privileged will is that a person should intend that the property should be disposed of as he or she states although he or she need not think that he or she is making a will. Re Stable, Dalrymple v Campbell (supra). There must be some clear statement to the witness by way of instructions or wishes, which the testator wants to be carried out. A mere statement as to what a person believes to be the position on intestacy does not amount to a privileged will. In Re Donner's Estate (1917) 34 TLR 138 the deceased having heard that on his intestate death his mother would get everything he said "That is what I want. I want my mother to have everything". This was not a privileged will. In Re Knibb's Estate (supra) the statement "if anything happens to me Iris will get everything I have got" merely indicated to the witness that those were the arrangements that had already been made and so did not amount to a privileged will. In Re Jones [1981] 1 All ER 1an instruction to an officer was held to be a privileged will. In Re Spicer [1949] P 41 an oral declaration by a soldier that his possessions would go to a named person was treated as a privileged will although it was thought that his will may have been written in his paybook which could not be found. DONATIO MORTIS CAUSA Borkowski Chapter 9 Sawyer Chapter 2 esp. pp 19 - 26 on Donatio Mortis Causa, In Hedges v Hedges (1708) Prec Ch 269 Lord Cowper recognised the gift as follows: "Where a man lies in extremity, or being surprised by sickness, and not having an opportunity of making a will; but lest he should die before he make it he gives with own hands his goods to his friends about him: this, if he dies, shall operate as a legacy; but if he recovers, then does the property thereof revert to him."

In Re Beaumont [1902] 1 Ch 889 Buckley described it as: "a singular form of gift. It may be said to be of an amphibious nature, being a gift which is neither entirely inter vivos nor testamentary, by which the donee is to have the absolute title to the subject of the gift not at once but if the donor dies. If the donor dies the title becomes absolute and not under but as against his executor. In order to make the gift valid it must be made so as to take effect on the donor's death". A Donatio Mortis Causa is therefore a gift made in a person's lifetime with the intention that it should take effect on his or her death. Requirements a. the gift must have been made in contemplation although not necessarily in expectation of death; b. there must have been a deliver to the donee of the subject matter of the gift; and c. the gift must have intended to have been conditional upon the donor's death and intended to revert if the donor recovered. Contemplation of death The court will infer that the gift is given in contemplation of death from the circumstances e.g. if it is during the donor's last illness as in Gardner v Parker (1818) 3 Madd 184. It does not matter if the donor dies from some cause other than the one originally contemplated Wilkes v Allington [1931] 2 Ch 104 where the donor died of pneumonia rather than the cancer that he contemplated dying from. It was held in the Irish case of Agnew v Belfast Banking Co [1896] 2 IR 204 that for the reasons of public policy the gift would not be upheld if in contemplation of suicide and this was followed in Re Dudman [1925] 1 Ch 553 but suicide is no longer an offence and therefore these decisions may not be followed in future. Also see Mills v Shields and Kelly (1948) where a donatio was held valid when the donor made the gift on hearing that he had an illness and later killed himself prior to treatment. In Re Miller (1961) 105 Sol Jo 207 it was held that whether the contemplation was reasonable depended on a subjective test i.e. whether the donor believed that he or she was likely to die. In this case the donor had a fear of flying and was about to undertake a flight. Delivery of the Subject Matter There must be more than mere words: a. there must be a parting with the dominion of the subject matter; b. to the donee or the donee's agent, c. a delivery of the subject matter of the gift or a means of access to it. Dominion comes form the Roman Law origin of this doctrine. It means the donor intends to part with control over the subject matter and not merely hand it over for safe custody. The handing over of keys may be sufficient as in Woodward v Woodward [1992] RTR 35 CA or by putting cash in an envelope for the intended donees as in Re Hawkins [1924] 2 Ch 47 or by the handing over of a deposit note as in Cain v Moon [1986] 2 QB 283. In Re Lillingston

the deposit of jewellery in a trunk and the handing over of the key of the trunk to the donee amounted to delivery. However a requirement by the donor to see the contents of a locked cash box that had been handed to the donee prevented delivery as the donor still retained control, Reddel v Dobree (1834). Setting aside property rather than handing directly to the donees is also not delivery Bunn v Markham (1816). Also where a person gives property to another with a view to settling her affairs should she die but does not give further directions the gift does not amount to a delivery as she reserved dominion over the property until directions were given, Treasury Solicitor v Lewis (1900) 2 Ch 812. In Hills v Hills (1841) 8 M&W 401 a donor gave property to a donee on trust to pay funeral expenses. Certain subject matter requires some formality before title will pass and generally the equitable principle that equity will not perfect an imperfect gift applies however this principle is often relaxed in the case of Donatio Mortis Causa. Therefore it has been held in Birch v Treasury Solicitor [1951] Ch 298 that the delivery of some essential indicia or evidence of title, possessions or production of which entitles the possessor to the money or property purported to be given will be sufficient e.g. a bank deposit book. It had until recently been held that land could not be the subject of a donatio mortis causa. The case of Duffield v Elwes (1827) held that a mortgage could pass because it was the right to claim the debt (money) that was given not the security (land). However in that case it was added that land could not come under donatio because of the requirements of the Law of Property Act 1925 relating to the transfer of land. In Sen v Headley [1991] Ch 425 it was held by the Court of Appeal that land may form the subject of a Donatio Mortis Causa by the handing over of the keys of the box containing the deeds to the property by the donor. It was stated that the whole system of donatio was an exception to the general rules relating to both inter vivos gifts and gifts by will. The system enabled a gift to be made without the usual formalities in either case. Therefore to say that the formalities do not apply in relation to donatio for all property except land was an anomaly to the exception. The Gift is intended to be conditional on the donor's death. The intention that the gift is conditional on the donor's death and will revert if he or she recovers need not be stated but may be inferred from the circumstances as in Staniland v Willott (1850) 3 Mac & G 664. The time of recovery is when the donor no longer contemplates death. The gift may be revoked at any time before death. Gardner v Parker (1818) 3 Madd 184; Edwards v Jones (1836) 40 ER 361. It was held in Lord Advocate v M'Court (1893) 20 R 488 that a donor who knows that he or she will not recover cannot make a donatio since death will not so much be a condition as a certainty. However this decision may have been influenced by the tax implications at the time and in cases such as Re Lillingston the courts have assumed that donor's are more optimistic about their condition. The Effect of Death If the donee predeceases the donor there are two possibilities: a) The gift does not lapse because it takes effect immediately subject to the condition subsequent that the donor dies.

b) The gift lapses because the gift does not take effect until the donor's death but still might be saved under the rules relating to lapse. If there is a subsequent will that conflicts with the gift: a) this may not revoke the gift because the gift become complete and irrevocable at the moment of death before the will takes effect. b) The will may revoke the gift since the will itself may be revoked at any time until death and the will shows this intention. However the will itself is ambulatory and does not take effect until death by which time the gift will be effective. If the deceased's estate is insufficient to cover payment of all the debts then after all the assets of the estate have been exhausted the gift may be realised to settle any debts still outstanding. Inheritance tax is payable on the gift by the donee and not out of the estate. JE Martin - Conveyancer 1992 Jan/Feb 53-58 C Rickett - "No Donatio Mortis of Real Property" Conveyancer 1989 May/June 184 191 M Halliwell "Concession to uniformity" Conveyancer 1991 July/Aug 307-311 HB Parry "Donatio and Age of childbearing" Conveyancer 1990 March/April 132-135