Seaman's Will Upheld get-single-case

Claire Vale, as associate solicitor in the contentious probate department, acted on behalf of a claimant who successfully applied to the High Court to revoke a grant of letters of administration in respect of the estate of her nephew; the Court pronounced in favour of a verbal Will made by the nephew in 1990.

Section 11 of the Wills Act 1837 provides that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his property after death without the usual formalities.

Our client's nephew had been a ship's radio officer, always serving on board foreign ships. On his death a grant of letters of administration had been obtained on the assumption that he had died intestate. Subsequently it became apparent that in 1985, and again in 1990, he might have made valid nuncupative Wills under the privilege accorded to seamen and mariners under Section 11 of the Wills Act 1837. The evidence of the nephew's cousin, was that he had told her on those two occasions that if anything happened to him he wanted everything to go to the claimant. The first conversation took place in Leeds and the second conversation took place in St Albans.

The radio officer was the son of the claimant’s twin sister, to whom the claimant had been very close. After his mother's death, in 1975, the claimant’s home became the officer's base whenever he was home from sea and she also became the recipient of all his financial correspondence whenever he was away. She was like his second mother.

The Court accepted his cousin’s evidence of the conversations with the officer. It was not necessary for the validity of the privileged Will that he knew he was making a Will; what was required was that he intended deliberately to express his wishes as to what should be done with his property in the event of his death.

The words used, the seriousness with which he spoke on both occasions and the fact that his cousin was a person who could be relied upon to carry out his wishes combined to show that the test of intention was satisfied.

The Court also found that the privilege contained in Section 11 of the Act was not restricted to those serving or engaged to serve on British-registered ships.

The phrase "being at sea" in Section 11 had been construed in previous cases as not just including seamen literally at sea, but also extending to those on land who were "under orders" to join their ship. The officer was to be regarded as having been "at sea" on the second occasion because the evidence showed he had at that time been instructed to join his ship and his activities thereafter were directed towards his preparation for the voyage.

The Court therefore revoked the grant of letters of administration and pronounced in favour of the 1990 Will. That would have the effect of revoking any previous Will, including the one made in 1985.