Privileged Will

What is a Privileged Will?

A privileged will is a type of will that can be made without adhering to the usual formalities required for a standard will. This means that individuals eligible to make a privileged will can do so without requiring written documentation, signatures, or witnesses. The primary purpose of privileged wills is to provide a means for individuals in exceptional circumstances to ensure their wishes are recorded and respected without the constraints of standard legal formalities.

Legal Framework

Section 11 of the Wills Act 1837 provides the legal basis for privileged wills. This legislation recognises that certain individuals may not have the opportunity to create a formal will and, therefore, allows for more flexibility in how their testamentary intentions are expressed.

Eligibility for Making a Privileged Will

Members of the Armed Forces

One of the primary groups eligible to make a privileged will are armed forces members. This includes:

1. Active Service: Individuals actively serving in the armed forces and are engaged in operations where they face imminent danger or death.
2. Imminent Deployment: Service members about to be deployed to a combat zone or other high-risk area.

This provision is justified because, given the unpredictable and hazardous nature of their duties, members of the armed forces may not have the time or opportunity to make a formal will.

Mariners and Seamen

Another group eligible to make a privileged will includes mariners and seamen. This category encompasses individuals who are:

1. At Sea: Actively serving on a vessel at sea, facing the inherent risks associated with maritime operations.
2. Imminent Voyage: About to embark on a sea voyage with significant risks.

Like members of the armed forces, mariners and seamen may find themselves in situations where making a formal will is impractical, necessitating a more flexible approach to recording their testamentary wishes.

Minors in the Armed Forces

The law also makes special provisions for minors serving in the armed forces. While individuals under 18 are generally not considered legally capable of making a will, those serving in the armed forces are granted the ability to create a privileged will. This exception recognises the unique circumstances and responsibilities that these young individuals face.

Form and Validity of Privileged Wills

Oral and Written Wills

A privileged will can be made either orally or in writing, providing significant flexibility for the testator. Key points include:

1. Oral Wills: An oral will, also known as a nuncupative will, is made verbally in the presence of witnesses. It is crucial that the witnesses can later testify to the testator’s intentions.
2. Written Wills: A written privileged will does not need to adhere to the formal requirements of a standard will, such as being signed or witnessed. However, clarity and detail are still important to ensure the testator’s wishes are understood and executed.

Witnesses

While witnesses are not a formal requirement for privileged wills, their presence can be beneficial, particularly for oral wills. Witnesses can provide evidence of the testator’s intentions and help verify the will’s validity if its contents are later disputed.

Time-Sensitive Nature

Privileged wills are inherently time-sensitive, created under circumstances where the testator may face imminent danger or death. As such, these wills must be documented and acted upon promptly to ensure the testator’s wishes are honoured.

Advantages and Limitations of Privileged Wills

Advantages

1. Flexibility: The primary advantage of privileged wills is their flexibility. They allow individuals in high-risk situations to record their testamentary intentions without the constraints of formal legal requirements.
2. Accessibility: Privileged wills provide a means for individuals who may not have access to legal services or the time to create a formal will to ensure their wishes are documented.
3. Peace of Mind: For members of the armed forces, mariners, and seamen, making a privileged will offers peace of mind, knowing their wishes will be respected even if they cannot create a formal will.

Limitations

1. Potential for Disputes: The lack of formal requirements can lead to disputes over the validity and interpretation of privileged wills. Proving the testator’s intentions may be challenging, especially if witnesses are unavailable or memories fade over time.
2. Limited Scope: Privileged wills are only available to specific groups of individuals. Those not meeting the eligibility criteria must adhere to the formal requirements for making a will.
3. Temporary Nature: Privileged wills are often considered temporary solutions, intended to provide interim protection until a formal will can be made. They may not address all aspects of the testator’s estate planning needs.

Practical Considerations for Making a Privileged Will

Clarity and Detail

Whether oral or written, a privileged will should be as clear and detailed as possible. This includes specifying beneficiaries, describing assets, and outlining any particular wishes or instructions. Clarity helps ensure that the testator’s intentions are understood and reduces the potential for disputes.

Recording the Will

For oral privileged wills, it is advisable to record the will in writing as soon as possible. This can involve having witnesses write down the testator’s statements or making an audio or video recording, if feasible. Written documentation provides valuable evidence and can help verify the testator’s intentions.

Involving Witnesses

While not required, involving witnesses can strengthen the validity of a privileged will. Witnesses should be individuals who are likely to be available to provide testimony if needed. It is also beneficial to inform trusted family members or friends about the will’s existence and contents.

Seeking Legal Advice

Individuals eligible to make a privileged will should seek legal advice whenever possible. A solicitor can provide guidance on the best way to document the will, ensure that it meets legal requirements, and address any potential issues or concerns.

Case Studies

A Soldier’s Oral Will

Scenario: Private James, a soldier in active combat, realises the imminent danger he faces and decides to make an oral will. He verbally expresses his wishes to two fellow soldiers, stating that he wants his savings to go to his parents and his personal belongings to be distributed among his siblings.

Steps Taken:

1. Expressing Wishes: Private James clearly states his wishes to his fellow soldiers.
2. Documenting the Will: The fellow soldiers write down Private James’s statements as soon as possible, providing a clear record of his intentions.
3. Verifying with Commanding Officer: The written document is shared with the commanding officer, who verifies the content and keeps a copy.

Outcome: When Private James is later killed in action, the written document, along with the witnesses’ testimony, provides sufficient evidence to execute his stated wishes.

A Sailor’s Written Will

Scenario: Captain Smith, a merchant navy officer, is about to embark on a dangerous voyage. He writes a letter to his spouse, outlining his wishes to distribute his assets in case he does not return.

Steps Taken:

1. Writing the Will: Captain Smith writes a detailed letter, specifying beneficiaries and the distribution of his assets.
2. Informing a Colleague: He informs a trusted colleague about the letter and its location, ensuring that it will be found if necessary.

Outcome: When Captain Smith tragically dies during the voyage, the letter is found and presented to a solicitor. Despite the lack of formalities, the clear and detailed nature of the letter ensures that his wishes are respected and executed.

A Minor’s Privileged Will

Scenario: Alice, a 17-year-old serving in the armed forces, decides to make a privileged will before being deployed to a combat zone. She writes a simple note, stating her wish for her savings to go to her younger brother.

Steps Taken:

1. Writing the Will: Alice writes a brief but clear note, specifying her wishes.
2. Informing a Superior Officer: She informs her superior officer about the note and its location.

Outcome: When Alice is later killed in action, the note is found, and, with confirmation from her superior officer, her wishes are executed as stated.

Legal Considerations and Implications

Proving the Validity of a Privileged Will

Proving the validity of a privileged will can be challenging, particularly if it is contested. Key considerations include:

1. Testamentary Capacity: It must be demonstrated that the testator had the mental capacity to make the will and understood the implications of their decisions.
2. Intention: There must be clear evidence that the testator intended the document or statement to be their will.
3. Circumstances: The specific circumstances under which the privileged will was made (e.g., active service, at sea) must be established.

Handling Disputes

Disputes over privileged wills can arise for various reasons, including questions about the testator’s capacity, the will’s authenticity, or the interpretation of its contents. Addressing these disputes may involve:

1. Witness Testimony: Witnesses can provide crucial evidence to support the validity and interpretation of the will.
2. Documentary Evidence: Any written documentation, recordings, or other evidence can help corroborate the testator’s intentions.
3. Legal Proceedings: In some cases, resolving disputes may require legal proceedings, with the court making a determination based on the available evidence.

Impact on Estate Planning

While privileged wills offer flexibility, they should be viewed as a temporary measure. Individuals who create privileged wills are encouraged to make formal wills as soon as circumstances allow. Formal wills provide greater certainty, are less likely to be contested, and can address more comprehensive estate planning needs.

Practical Tips for Executors and Beneficiaries

Executors

1. Understand the Will: Ensure you fully understand the contents and context of the privileged will.
2. Gather Evidence: Collect all available evidence, including witness statements and any written documentation, to support the will’s validity.
3. Seek Legal Advice: Consult with a solicitor to navigate the complexities of administering a privileged will and addressing disputes.
4. Communicate with Beneficiaries: Maintain clear and open communication with beneficiaries, explaining the process and any challenges that arise.

Beneficiaries

1. Know Your Rights: Understand your rights as a beneficiary under a privileged will and seek legal advice if you have concerns.
2. Provide Support: Assist the executor by providing any information or evidence that may help validate the will.
3. Be Patient. The probate process can be complex and time-consuming, particularly when dealing with a privileged will.

The Role of Solicitors in Privileged Wills

Drafting and Advising

At DLS Solicitors, we play a crucial role in advising individuals on the creation of privileged wills. Our experienced solicitors provide guidance on:

1. Eligibility: Determining whether an individual is eligible to make a privileged will.
2. Documentation: Advising on the best ways to document the will, whether orally or in writing.
3. Legal Requirements: Ensuring that the will meets the necessary legal requirements and is likely to be upheld.

Estate Administration

Our solicitors provide expert assistance in the administration of estates involving privileged wills, including:

1. Validating the Will: Helping to gather evidence and validate the privileged will.
2. Resolving Disputes: Representing clients in disputes and ensuring the testator’s wishes are honoured.
3. Ensuring Compliance: Ensuring all legal requirements are met and the estate is administered efficiently and effectively.

Dispute Resolution

In cases where disputes arise regarding privileged wills, DLS Solicitors offers expert legal representation. We assist beneficiaries in enforcing their rights and represent clients in court if necessary, aiming to resolve disputes effectively and amicably.

Conclusion

Privileged wills provide a vital means for individuals in exceptional circumstances to ensure their testamentary wishes are recorded and respected without the constraints of formal legal requirements. At DLS Solicitors, we are committed to providing expert guidance and support throughout creating, validating, and administering privileged wills. Our experienced team ensures clients’ wishes are honoured and beneficiaries receive the support they need.

If you are considering making a privileged will or are an executor or beneficiary needing assistance, we invite you to contact DLS Solicitors. Our dedicated team is here to provide the expertise and support you need to navigate the complexities of privileged wills confidently and easily.