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Report No. 110

II. History

14.3. Origin in Roman Law.-

It is of interest to note that the Indian statutory provision as to privileged wills, though immediately derived from the corresponding English statute1, really owe their ultimate origin to the Roman law. The military will was introduced in Roman law by Emperor Julius Ceaser as a temporary concession, but it became an established institution in the early Empire2.

In Roman law, a soldier on active service might make his will as he pleased, and as he could. The will might be a written instrument; it might be by an oral declaration in the presence of two or three comrades; it might be by tracing characters in his blood on a scabbard or shield, or with a sword in the dust. Such a will, if the testator survived, remained valid for a year after honourable discharge from service.3

1. Section 11, Wills Act, 1837 (Para. 14.6, infra).

2. Lee Roman Law, 1955, p. 190.

3. Lee Roman Law, 1955, p. 190.

14.4. English cases.-

Thus, emergency gave birth to more liberal rules of law. This aspect of the matter has been discussed in a number of English cases. Among the many of the earlier English authorities dealing with the point, attention should be drawn to two decisions of Sir Francis Jenune, President.1-2 In the first case, the president indicated that the test which commended itself to him was-had the solider done something-had he taken some step-at the time when he made his will, to bring himself within the words of the section?

'This brings us very close to the Roman concept of in expenditions if indeed, not actually, to the same point that the Romans meant by in expeditions for, when a Roman did anything towards lighting the enemy, he would have been considered under the law of his time as being in expedition".3

1. Good of Hiscock (in re:), 1901 Probate 78 (83): (1900-1903) All ER Rep 63.

2. Gattward v. Knee, 1902 Probate 99 (Order for active service).

3. Good of Hiscock (in re:), 1901 Probate 78 (83): (1900-1903) All ER Rep 63.

14.5. In saying that that was the test which commended itself to him as the correct one, the President indicated that he was not aware that it had ever actually been laid down by any judicial authority; but, on the other hand, he did not known of any reported case that was against it. In Gattward v. Knee, 1902 Probate 99 he suggested that he might be "going to a step further" than in the earlier decision; but he had no doubt that mobilisation-giving to that word the effect which he understood it to convey-might fairly be taken as the commencement of that which, in Roman law, is expressed by the words in expeditione.

Those words, he said, meant something more that the English words "on an expendition", because it was quite clear that when a force began, in a sense, to engage in or to enter upon active service, it would be in expeditione. The judgement goes on:

"I thought, when deciding the case cited, and I still think, that it is fair to ask whether or not the person whose testamentary dispositions are in question haS done anything; but I am of the opinion that if the order for mobilisation has been received, although the men himself may have done nothing under it, yet that order so alters his position as practically to place him in expeditione.

Such an order goes beyond a mere warning. I do not think a mere warning for active service would be sufficient; but when a fore is mobilised I understand this to be that it, is placed under military orders with a view to some step being taken forthwith for active service". That was what had happened in the case of Wingham,1 in which the document in question was held to be a soldier's will under the Wills Act.2

1. Wingham (in re:), (1948) 1 All England Reports 208 (209).

2. See D.C. Potter Soldier's Wills, (1949) 12 Modern Law Review 183.

14.6. Meaning of "actual military service" in section 11, Wills Act, 1837 and comparison with Roman Law.-

So much as regards the history of the privilege, and some of the essential ingredients of the privilege. The statutory provision in England on the subject may now be referred to. Section 11 of the Wills Act, 1837, provides that "any soldier being in actual military service" may dispose of his personal estate without the formalities required by the Act.1 The material words in this section are the same as those in section 23 of the Statute of Frauds.

The courts in England have, from time to time, experienced considerable difficulty in construing these words, owing to the fact that conditions of military service and of welfare generally have changed completely since the words in question found their way into the Statute Book. It is now generally accepted that the words, when fist inserted into the Statute of Frauds, were intended to Confer on British soldiers the same testamentary rights as had been enjoyed by Roman soldiers under Roman law.2

In Drummnnd v. Parish, (1843) 3 Curt 522 (536, 537, 538, 542), referred to in Wingham (in re:), (1948) 1 All ER 208 (209). the provisions of the Roman Law as expounded by subsequent commentators, were reviewed at considerable length. It was observed-

"It is quite clear from these passages from the Digest, the Code and the commentators, generally, that the privilege did not extend to soldiers of every description; they must be soldiers expedition ibus occupati, or called out to defend the city; this last case was of itself an exception, for it could not strictly be said to be expeditio."

Later, the following passage in Swinburne on Wills3 was referred to:-

"Concerning the first sort, either they be such as lie safely in some castle, or place of defence, or besieged by the enemy, only in readiness to be employed in case of invasion or rebellion, and then they do not enjoy these military privileges, or else they be such as are in expedition or actual service of wars, and such are privileged at least during the time of their expedition.

Being of opinion from the result of the investigation of the authorities that the principle of exemption, contained in the 11th section of the Act, was adopted from the Roman law: I think it was adopted with the limitations to which I have adverted, and that, by the insertion of the words "actual military service." The privilege, as respects the British soldier, is confined to those who are on an expedition."4

Some of the authorities relating to the circumstances in which privileged wills could be executed in England were reviewed in a recent English case in the Family Division5 The deceased was a soldier in service in Northern Ireland in 1978 at a time of armed and clandestine insurrection against the Government. His unit was stationed in Northern Ireland as a part of the armed forces which were deployed there at the request of the civil authorities to assist in the maintenance of law and order.

While on patrol, the deceased was shot and mortally wounded by an unknown gunman. En route to the hospital, he stated to an officer and warrant officer of his battalion. "If I don't make it, make sure Anne gets all my stuff." Anne was his finance. The deceased died the next day. Under a written will made previously, the deceased had left everything to his mother.

On a Summons taken out by the finance applying for the deceased's oral declaration to be admitted as his last Will and testament on the basis that it was a privileged will under section 11 of the Wills Act, 1837, the question arose whether the deceased had been 'in actual military service' at the time of making the declaration and was, therefore, entitled to make a non-captive will.

It was held that whether the deceased was in actual military service for the purposes of section 11 of the Act of 1837 depended on the nature of the activities of the deceased and the unit or force to which he was attached, and not on the character of the opposing operations. The fact that there was not a state of war or that the enemy was not a uniformed force engaged in regular warfare or an insurgent force organised on conventional lines, was irrelevant in deciding whether the deceased was in actual military service.

Nor was it relevant whether the deceased's military service took place in the context of a foreign expedition or invasion or a local insurrection. On the facts, the deceased had clearly been in actual military service at the time of making the declaration and the declaration would, therefore, be admitted as a valid non-captive will.

1. Wingham (in re:), (1948) 1 All England Reports 208 (209).

2. Wingham (in re:), (1948) 1 All England Reports 208 (209).

3. Swinburne on Wills, 7th Edn., (1803), Vol. I, pp. 95-96.

4. Wingham (in re:), (1948) 1 All ER 208 (209).

5. Jones (in re:), (1981) 1 All ER 1.

14.7. New South Wales case.-

In a case decided by the New South Wales Court of Appeal,1 one of the questions that came up for consideration was whether privilege was available' to the deceased testator who was a British subject domiciled, in New South Wales, and who had during 1944 and 1945, while employed by the US. Army in the South-West Pacific as a civilian engineer, made a privileged will. The question arose having regard to the fact that he was acting on behalf of the U.S. Government. Following an early decision on the will of a soldier in the employ of the East India Company2 the New South Wales Court of Appeal held that the privilege was not restricted to members of the forces of her Majesty.

1. White (in re:), (1975), South Wales Law Report 125: Annual Survey of Commonwealth Law, 1970, p. 333.

2. Case of Donaldson (in re:), (1840) 2 Curt 1.



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