I have a client under 18 who has not long joined the Navy.
Can I draft a Will for him now as a privilege Will with the understanding that while he is under 18, it is only effective if at the time of his death, he can be classified as a “mariner or seaman being at sea”.
My understanding is that at the time of execution he needs to be classed as “a mariner at sea” not at date of death. Re Rapley [1983] says that the privilege can be invoked by anyone serving in the Royal Navy. They don’t have to actually be at sea.
Section 11 WA 1837 deals with so-called “privileged wills”.
The requirement is for the will to be made by any “mariner or seaman being at sea”.
The issue, typically, is whether at the time of making the will the mariner/seaman is “at sea”. It seems from the cases that the courts have interpreted “at sea” not perhaps in the same manner as those words might be commonly understood. In fact, a will made on land may be treated as having made “at sea” [In the Goods of Hale [1915]] !!
The crucial issue seems to be that at the time the will is made (if on land) the mariner/seaman must be in a state of preparation for going to sea or under orders to do so. Iain refers to Re Rapleys’s Estate where in fact neither of these two conditions was satisfied and the will was held invalid.
I’m assuming the Wills (Soldiers and Sailors) Act 1918 is not in point.
Malcolm Finney
I stand corrected. Should have read the whole case not just the highlighters!