- Published: September 3, 2022
- Updated: September 3, 2022
- University / College: University of Iowa
- Language: English
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The position of privileged will in Malaysia can be seen through the Will Acts 1959. Section 26 of Will Acts 1959 provides the Privileged Wills of soldiers, airmen and sailors.
The categories entitled to make Privileged Wills in Malaysia
Section 26(1) mentioned that a member of the armed forces of Malaysia being in actual military service, and a mariner or seaman (including a member of the naval forces of Malaysia) being at sea may dispose of his property or of the guardianship, custody and tuition of a child or may exercise a power of appointment exercisable by will by a privileged will. The position of Privileged Wills is quite similar with the position in UK. In Malaysia, by reason of occupation, some persons don’t have to follow the formalities required under S. 5 of the Wills Act. On the other hand, in UK, there are exceptions to Section 9 of the Wills Act 1837 also. Those people who are allowed to make privileged will are provided under S. 26(1) of the Will Act 1959. In other words, soldiers in actual military service and also the mariner or seaman at sea are allowed to make Privileged Will. Section 11 of the Will Act 1837 in UK is same with Section 26(1) of the Will Act in Malaysia. Although there is no case in Malaysia referred to the interpretation of the definition for ” soldiers”, ” seaman” and ” mariner”, but most of the judges are willing to follow the case law decided in UK. The word of ” Soldier” is not only included those soldiers who are involving in fighting during war time, it also means those people who are serving with the forces. So, the wide interpretation of the word ” Soldier” includes the civilians who work with the armed force. A very good example will be the doctors and nurse who serve the soldier. In the case of In the Estate of Stanley,the court held that the nurse will be considered as the ” soldier” and is allowed to make privileged will because the nurse is serving under contract to the War office on hospital ships. In the case of Will of Anderson,the Australian soldier who involved in suppressing terrorists activity in Malaya in 1956 is entitled to make privileged will. On the other hand, in certain circumstances where no military operations have occurred but it is believed to be imminent can be considered as ‘ actual military service’. Besides, the definition of the term ‘ mariner or seaman at sea’ which is provided under S. 26(1) of the Will Act 1959 in Malaysia confined to members of merchant navy, Royal Navy and also civilian who serve merchant navy. For example: barman on a liner,typist who is employed on ocean-going linersand the pilot of the ship or boatare considered as the mariner or seaman at sea. In law, the term ‘ at sea’ doesn’t mean at sea only, we should look at the wide interpretation which includes lakes, rivers, and canal. In the case of Goods of Austen,the court held that the term ‘ at sea’ doesn’t mean that the mariner or seaman should be at sea, therefore the codicil made while on an expedition on the Rangoon River is privileged. The following issue will be whether a seaman can make a privileged will on land? The answer is acceptable for mariner or seaman who are preparing for the next voyage to make a privileged will on land. It can be seen in the UK case of In the Goods of Hale,Sarah Hale made her will at the Liverpool offices of Cunard (on land) after she receiving notification of her next voyage. Besides, in the case of Re Newland’s Estate,the court held that the seaman or mariner who was on leave but got the notification to rejoin the ship is entitled to make privileged will. However, it will be different in the circumstances where the seaman or mariner had been discharged from his previous ship and had not yet been instructed to join another ship. It can be shown in the case of Re Rapley’s Estate,the court held that the testator is not entitled to make privilege will under such a circumstances.
The reasons for Privileged Will to be existed in Malaysia
Section 26(2) mentioned that a privileged will means any declaration or disposition, oral or in writing, made by or at the directions of the testator which manifests the intentions of the testator which he desires to be carried or to the guardianship, custody and tuition of a child or to the exercise of a power of appointment. The main reason behind Section 26(2) is that member of the armed forces of Malaysia being in actual military service, and a mariner or seaman have less chances to make a proper will due to their occupation which require them to always be outside the routine of a normal person life. It is to prevent the testator dies without leaving a will (intestacy). Besides, it is also to ensure that the spouses, issues, parents or any other relatives of the privileged testator can get what they deserve. Besides, other than lacking of knowledge in Will-making, they are also facing mortal danger for every moment during their duty. Thus, they are risked dying before a formal will could be made. Furthermore, the armed force involved long period of absence from civil surroundings could be hard to obtain legal advice to properly execute a proper will. Therefore, Malaysia still retain the privileged will for the particular categories mentioned above based on these grounds.
Section 26(3) mentioned that a declaration may be a valid privileged will although the testator later express his wishes to make a formal will but died before making it, unless it appears that the failure to execute such declaration in such manner or such formal will was due to the abandonment by the testator of the testamentary intentions expressed by such declaration.Section 26(4) states that Sections 4, 5 and 6 shall not apply to privileged wills, nor is it necessary for a written privileged will to be signed by the testator. Section 4 of the Will Acts 1959 mentioned about the person who can make a valid will need to reach majority age 18. It means that any person who haven’t attain the age of majority that is 18 years old have no right to make Will and the Will is invalid. However, there is exception to this particular section. Under Privileged Will, the privilege testator can be a minor. In the other words, the privileged will made by minor is valid. In UK, any privileged male who has attained the age of 14 and any privileged female who has attained the age of 12 will have the right to make will. Therefore, the privileged testators who are minor will not subject to Section 4 of Will Acts 1959. Section 5 of the Will Acts 1959 is about the mode of execution. Section 5 (1) states that no will shall be valid unless it is in writing. However, privileged will can be in oral or written form depend on privileged testator. Section 5(2) states that every will shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction, in the presence of two or more witnesses present at the same time, and such witnesses shall subscribe the will in the presence of the testator. However, under privileged will, the exception is that it is still acceptable even there is no signature in the will. The privileged will can be made without any witnesses. Besides, the witness can also be the beneficiary of the will. Thus, the privileged will can still be valid even though it doesn’t follow the requirement under S. 5(2) which listed from (a) to (e). Privileged will is the same with the standard form of will in the sense of intention. The privileged will is invalid if there is the testator had no intent to make the will. The testator should intent to wish of how he/she are going to dispose his/her property upon his death. In the other words, the will is invalid if the will is not intended to take effect when the testator dies.Even though the testator is not aware that he is a making a will, the court held that yet the testator can still have animus testandi. It was shown in the case of In Re Stable, the deceased who was a young soldier told his fiancee in the presence of an acquaintance that everything that belong to him will give to his fiancee in the event of his death. In this case, he is not aware that he was making a will as his lawyer had mistakenly told him that he is too young to make a will. However, the Courts held that the will is valid since the testator expressed his wishes on the disposition of his property upon his death.
The exception and revocation of Privileged Will
Section 26(5) provides that a privileged will shall be declared invalid once the expiration of one month after the testator being still alive has ceased to be entitled to make a privileged will. In other word, it means that if the privileged testator is still alive after one month after ceasing to be a privileged testator, then the will he made previously during the priviilege status shall no longer be valid. The position of privileged will in Malaysia at this point is quite similar with Roman law where a privileged will lapsed after the privileged testator is discharged from duty. All the prior wills will be revoked once the privileged will is made. However, under Section 12 of the Will Acts 1959, every will shall be automatically revoked by marriage, included privileged will also. It is because a person life will be changed by marriage and marriage means that the person will have new personal and financial responsibilities. The UK case of In the Estate of Wardrop,the court held that a privilege will can be revoked by the subsequent marriage of the privileged testator. Besides that, a privilege will may also be revoked by Section 14 of the Will Acts 1959. It provides that a will may be revoke by writing or declaring an intention to revoke the will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same. In Malaysia, the privilege testator can write an informal writing to declare his intention to revoke the privileged will. This can be referred to UK case. In the Estate of Gossage,the testator sent an unattested letter to his sister for asking her to burn the properly executed will. The court held that it shows the clear intention on the testator to revoke the will. The informal way of revoke the privileged will include an oral statement. For example, an oral statement ‘ I want to revoke my prior will’ is enough and satisfy to revoke a will. In UK and Malaysia, the privilege testator can simply make a privileged will without any formality. They can simply revoke the privileged will by any informal way. On the other hand, it also means that they can change the privileged will without following the alteration formalities.
Problem faced by the Privileged Will
As we have mentioned the position of Privileged Will in Malaysia and compare with some other countries, now we are going to further critical analysis and discuss the controversy issue faced in Privileged Will. Besides the controversy issues, frankly, there is no consistency on the law of Privileged Will applied around the world. Some of the countries, restrictions were imposed on a legality of a Privileged Will. For instance: ” actively engaged in a war effort” is a must for the military personnel to make a valid will. Thus, who are not imminent to danger or in a place with disturbance cannot make a privileged will in some countries. Moreover, a sailor who is not currently at sea cannot draft a Privileged Will while on land. This is due to he/she has the opportunity access to legal advice. In addition, some countries allow and recognize the verbal expression of last wishes to constitute a Privileged Will. In contrast some other nations need a document that at least carries the signature of the testator to be submitted.
Although S. 26 of the Wills Act 1959 mentioned about soldiers, airmen and sailors may made a Privileged will, the 3 phrases (soldiers, airmen, sailors) has been given a wide definition during the past few years and there is no any case law regarding to this interpretation of the phrases. Thus by further referring to the UK authority, the word ‘ soldier’ encompasses any person working as a soldier, and not just members of the official armed forces is stated in Law Review. In the Goods of Donaldson,held that a soldier employed by the East India Company was entitled to the privilege. In Wingham,other than army soldiers, the word was held to include persons undergoing military training, members of forces who work both at their jobs and man defences, and auxiliary personnel serving with armed forces such as doctors,nursesand chaplains. The New South Wales Court of Appeal went even further in Re White’s Application.In that case, the deceased was issued with papers which showed he had a status equivalent to that of a major in the United States Army when he was employed during World War II by the United States Army as a civilian engineer treated as an officer prisoner-of-war. Thus the court held he was entitled to make a privileged will. Secondly, it was once thought that a soldier on actual military service was in the same position as a Roman soldier in expeditione. He or she had to be either serving overseas in a campaign, or be mobilized and about to serve overseas. In the Goods of Hiscock,the court allowed a soldier in barracks under orders to make a privileged will. In the landmark case of Re Wingham (deceased); Andrew and another v Wingha,the plaintiff was sent overseas for training on service as an airman. The issue now was whether the deceased was in ” actual military service”? When the case was appealed to the Court of Appeal, Bucknill J was applying two tests: (a) was the testator ” on military service”; (b) was such service ” active”? In his opinion, he thinks that the adjective ” active” to such service is directly concerned with operations in a war which is or has been in progress or is imminent. Thus the deceased was so engaged and the appeal allowed. The learned judge further agreed that no actual declaration of war is necessary to invoke the privilege. Some of the later cases have been extended the meaning of ” actual military service”. In the case of Re Limondand In the Estate of Colmanstated that the soldiers still can be considered as in actual military service long after fighting has ceased. Besides, the terms also included quasi-military operations. In the Will of Anderson,the court held that ” actual military service” does not imply a state of international conflict. A soldier who is under orders proceeding to Malaya to aid Malayan Government against Communist rebels may suffice. In the case of In re Berry (deed), Public Trustee v Berry,the court held that ” actual military service” did not just mean de jure wars, but any form of ” warlike operations”. Furthermore, the phrase ” Mariner and seaman” have been referring to all the naval forces and merchant seamen, including ancillary staff serving on board a sailing vessel. While, the interpretation ” at sea” has widened to include service on board a vessel stationed permanently in a harbour,or lying in a river before sailing.In addition, a person who is serving on a ship under a ship’s company now has the right to make Privileged Will too as long as they under the order to join a ship for long periods.However, people who are under orders to join a ship for a short periods such a captain who ran a ferry across the English Channelmay not apply for Privileged Will. From the cases discussed above, the court seems to be very flexible in granting the right of making privilege will once they are engaging in military service.
Rules of revocation
Under the statutory provision of either UK law or Malaysia Law, there were only provided that ” any soldier being in actual military service…. may dispose of his personal estate without following the formalities required in normal will.” However, the section remains silence as regards to the revocation of any wills that they have made. The only provision the Act dealing with the revocation of Wills are those contained in s. 18, s. 19 and 20 (United Kingdom), which together form a code on the subject and apply equally to soldiers’ and civillians’ wills. In other words, s. 18 provides that ” every will” shall be revoked by marriage and therefore includes a soldier’s will. Thus, it is quite confusing when the issue arise on how can a privilege testator revoke his will effectively? In the case of Re Gossage, Wood v Gossage,the Court of Appeal judge opined that no formalities are required for the execution of a soldier’s will and therefore none are required for its revocation. Thus, the revocation is valid. The general rule now is an informal letter or act made while a person is privileged which has the intention to revoke previous will may effectively revokes it. It doesn’t matter whether the will was properly-executed or informal. Unfortunately under this rule, an informal letter or act in a temporary fit of anger will cause privileged testator to dispose of their property validly without any formalities. Besides, now the testator can revoke the previous formal will created before by an informal Privileged Will. In addition, if a testator forgotten his Privileged Will made for a long time, it can be turned out to be effective also. In the case of In re Booth,a privileged will made in 1881 was admitted to probate 45 years later in 1926. On the other hand, unattested alterations which appear on a will are presumed to be effective and to have been made during the continuance of the privilege. It can be seen in the case of In the Goods of Newland.Thus this rule had caused undesirable outcome at the end of the day because a formally executed will may be either revoke or alter by an informal oral or written statements.
Posibility of Fraud
Another issue faced by Privileged Will was there is a possibility of fraud. Some brazen person may deceive and assert that the deceased has made a will in his favor because there is no strict compliance of formalities. An oral will is enough to be declared valid. It must be noted that for a normal will to be properly executed, at least two witnesses are required while the testator may find themselves with only one witness presence under Privileged Will. Thus, sometimes the only defrauder which also the witness might get benefit once he can prove that the testator has intended to leave the property to him.
There are always some obstacles to obtain reliable, admissible evidence to prove the content of the Privileged Will is the last wishes of the testator, especially when there is an oral declaration. This is because the circumstances in which the will is made, the state of mind of the testator, the interpretation of declaration of intention may sometimes very confused which further causing complicated and expensive litigation.Thus, there may have vast opportunities for mistaken or perjured evidence arise. In the case of Re Jones,the testator who was a soldier in a danger situation and made an oral declaration that: ” if i don’t make it, please make sure Annie [his girlfriend] gets all my stuff”. It was difficult to distinguish in this statement whether he was referring to his personal effects in the barracks, his entire personal estate or the whole of his estate, real and personal.
Difficulties in Proof of testamentary intention
The intention of the testator to give effect to the will is an important element in constituting a will, included Privileged Will. The informalities of Privileged Wills had caused the court encountering difficulties in determining whether the particular oral or written statements made by the testator were intended to give effect after or upon his death. In other words, the court needs to determine the hardest element which is the testamentary intention. This can be illustrated in the case of In re Lowewhereby the court does not know whether deceased was intended to make a will or make other wishes as to the disposition of property in the event of her death. In the case of Godman v Godmanthe court declare that the deceased did not purport to give effect to the will but he was in contemplation to make formal document. The learned judge in the case of In the Estate of Knibbsstated that ” a document or a conversation which anticipate on the wishes of the person making the statement is not sufficient. It must be something which is an expression of his wishes as to the disposition of his property although in an informal manner.” Therefore in the case, the statement: ” if anything happens to me, Iris will get everything I have got”was not a valid Privileged Will.
Recommendations on Privilege Wills
After a careful study with all the privilege wills, there are similarities that can be found within these countries and that is to ease the burden of the people, who are risking their lives, in making a will. Therefore, to the eyes of most people, they would come to a statement that privilege wills are simpler compared to a normal will because privilege testator need not to follow the mandatory formalities required under normal will. However, to our opinion, there are difficulties arising in this simple doctrine and these are a few of our recommendations to improve the system. One of the main issue is when does a soldier still qualified to make a privilege wills. Under normal circumstances, common law countries, such as Malaysia, state that the soldier must be in actual military service. However, what happens when a soldier has already retired. Are they still entitled to make privilege wills? According to the Common law system, they allow this category of people to be entitled to make privilege will that will last forever, but for Malaysia, it only last a month after they retiredTherefore, what Malaysia should do is to take the Common law countries as an example. Malaysia should try to adapt the Common law system whereby the privilege will shall last forever. In that way, those categories of people who are qualified to make privilege wills would be able to make it although they have already retired and without any restriction. This is because sometimes, although they may be retired but danger may still lurk around those people or they may expose to sequel (a type of mental illness due to engaging in military service for a long time). Thus, by ensuring that they may make privilege wills after retirement and without any period of time, they will be able to do it anytime when they are on the edge of death. This leads to another point. No doubt that soldiers, mariners and navies faced more dangerous situations compared to a normal citizen as they risk their lives due to their occupation. However, these days, danger is all around us and people would not know when their time is up. Therefore, our recommendation would be that they should make it more flexible in the sense whereby they should expand the categories of people qualifying for privilege wills instead of just giving especially for the soldiers, airmen and seamen. One way is by allowing judges to determine who should be qualified to make it especially those who are on the edge of death. However, it is noted that irrational fear of death is different from the risk of death. Another problem with privilege wills is that in this type of will, the testators are allowed to make in oral form in Malaysia. Generally, all wills must be made in written form. It is very convenient for those people such as soldier and mariners to make an oral will on the spot especially when they have not much time left. However, the difficulty is proving whether is there such will made by the testator. As it is noted, the formalities for wills are to prevent such cases such as fraud. However, when privilege will is made in oral, is there enough evidence to prove that it is the original will of the testator or is it just a fraud. No matter how close the testator may be with the witness, if the witness wishes to commit fraud after the testator’s death, they may do so as human’s mind have the tendency to change. Therefore, another recommendation to improve this flaw would be by improving the system of making a privilege will. One of the steps would be making it in written form in order to prevent any fraud. However, by implementing this system, it is indirectly defeating the whole reason of having a privilege will in the first place which is to ease the testators in disposing their property according to the manner they wish to take place after their death. To our opinion, if the privilege wills must be in the form of writing, our recommendations would be that the will can be written in a simpler way compared to normal will to ease the testators. If the testators do not have the strength to write anymore but still have the little more strength to talk, then it would be ideal if it was made in recording to prevent forgery. However, when a soldier is about to die, their comrades would not have the time to record their last wishes and instead they would probably try their best to save that soldiers’ life. The only way that court can do is to determine carefully the rationality of the last wishes made by the testator. If rational, then the will may presume valid whole if it is irrational, the burden of proof is on the propounder. Countries such as Malaysia, which allows privilege wills to be done in oral form should set Canada as an example where everywhere except two of its provinces, Newfoundland and Labrador, and Nova Scotia, requires privilege wills to be done in written form. However, with most of the problems being identified and solutions were there to eradicate the problems, it is still not adequate to solve most of the problems raise by this doctrine of privilege wills. Therefore, we come to an opinion that the doctrine of privilege will should be abolished.
Opinion on Privileged Will
All in all, although there are benefits when it comes to privilege wills, to our opinion, privilege wills should be abolished. There are several reasons that make us come to our stand. There is no doubt that the purpose of privilege wills is for those who are risking their lives to ensure that our country is at peace and harmony. However, the process of making privilege wills is very doubtful at times and some privileges enjoyed by them were useless to certain extent. The exception for the Privileged will is that the testator does not need to reach the age of majority which is 18 to make a valid will. That is when the problems start arising. When the law states that the age of majority is eighteen, the law assumed that by then most of the people would have already matured. However, maturity comes different times to different people. Some may be matured at even a younger age than eighteen while some may be twenty and still have no sense of maturity. Thus, sometimes they may distribute their property without thorough thought. When those below majority age who are qualified to make a privilege will, the following question is who would be their beneficiaries? When they named their beneficiaries, do they really know that person well enough to give away their property to them? If they would give away their properties to their immediate family is not that bad, but what happens if they were to named their girlfriends or boyfriends whom they only known for maybe one year perhaps. Hence, the testator might not know the beneficiaries that well and yet they are disposing their properties to them. Moreover, what properties that a minor owned that can be disposed of? They may have small items such as laptop and mobile phones, but those items are just petty items and not those kind of property such as houses, cars and lands. They do not have accounts in the banks and even if they do, the amount of money is not worth disputing of. Therefore, they may not even have any property to dispose of. Therefore, the exception for privileged will sometimes seems useless because a minor who is engaging in a military service might not have the capacity to make a will. Besides that, if it was based on the judge’s decision on the case, how are they going to measure the imminent risk of death? However, the judges must ensure that if a person would want to make a privilege will due to the fact that they have an irrational fear of death, then those people are not qualified to do so. This is because if they are afraid of death approaching them, then the least they should do is make a proper and valid will to dispose their property according to their own manner upon or after their death. Rationally, we are on the opinion that privilege wills should be abolished as it has caused a lot of difficulties. Instead, those people whose occupations with high risk of losing their lives, there is another solution to ensure their right in distributing their properties. One of the recommendations would be asking those soldiers, mariners and navies to make a valid will before springing into action. Thus, before they enroll or begin their training, the officers-in-charge should make it a compulsory for all the new recruits to make a valid will in case of something happen to them. Thus, they do not longer need privilege will to dispose of their property as before their training begins, they must make a valid will. Besides that, by making all the newly recruits to make a will is also good in the sense where it prevents forgery compared to those privilege wills. At least by doing so, they would know the manner of distribution of each of the recruits in case something happens to them and also, the tendency of someone trying to cheat their way in to change the will of the testator is lower compared to a will made in an oral form. That leads to another point, whereby making those recruits making a valid will before commencing their training, their wills would be in written form. So, there will be the evidence for the beneficiaries to show the intention of the testator. In other words, through the written form of the will, there is proof to indicate the intention of the testator to dispose of their properties in case anything shall befall against them. Some states in Australia had also abolished the doctrine of privilege wills. So far there are four states that have abolished the concept of privilege will which are New South Wales, Northern Territory, Victoria and also Queensland.Thus, this shows that steps had been taken to abolish the doctrine of privilege wills as it no longer serve a purpose in today’s society. Based on all the above reasons, and after a careful deliberation, our opinion is to abolish the doctrine of privilege wills to ensure that there could no longer be fraud between the witnesses. Also, before those soldiers, mariners, and navy commence their training or work, they must make a valid will just in case something unfortunate happens towards them. Thus, they do no longer need the right to privilege will.
As a conclusion, the difference between the privileged will and normal will (non-privileged will) are that privileged will may escape from following the Formalities that set out in s. 5 and age capacity set out under s. 4 of Wills Act 1959 while normal will cannot. Thus in other words, a privileged testator can make will in any form including oral and the testator need not attain the age of majority which is 18 years old. On the other hand, although soldiers, airmen and seamen enjoy the privilege that different from making a normal will, but 2 of the common element should also be proven when making a Privileged Will, there are the intention (animus testandi) and the mental capacity. These 2 elements need to be fulfilled in order to declare the will to be valid, if not it will only considered as a jargon. Therefore no matter how loose the requirements impose on Privileged Will, but at the end of the day, the court will determine it carefully whether there is any intentionand mental capacityof the testator when making the will in order to save the will. There are several judgments have given the meaning and distinguished which amount to intention and to which circumstances amount to possess mental capacity. At the end of the day, whether the Privileged Will has being abolished or improved, we also have to insist that a will need to be made by testator who intended to give effect upon or after his death. Without intention, the purpose of making a will may be defeated. Furthermore, in order to make a proper will, mental capacity is also a prerequisite for a will to be valid. A person who having delusion, drunk or capricious when making a will was unable to distribute his property rationally because he is unconscious what he is doing at that moment. Thus no matter it is a normal will or privileged will, these 2 elements need to be uphold in order to ensure it does not defeat the aim of law of succession.
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