Just how unusual it is to have a modern case on privileged wills is, perhaps, indicated by the comment of judge Peter Langan at the start of his judgment in Re Estate of Ashley Edward Servoz-Gavin, deceased 14 September 2009: ‘The case has involved a forensic journey on a path along which most lawyers, counsel and myself included, never travel after our student days.’

Privileged wills are the creation of statute. 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 formalities.

The deceased, Ashley, had been a ship’s radio officer. On his death a grant was obtained on the basis that he had died intestate. Subsequently it became apparent that, in 1985 and again in 1990, he might have made valid privileged wills. Ashley’s cousin, Christine, gave evidence that he had said to her on those two occasions that if anything happened to him, he wanted everything to go to his aunt Anne. Aunt Anne was the twin sister of his mother and he had been very close to her. After the death of his mother, she provided a home for him in England between voyages.

Christine’s daughter, Emma, dealt with the administration of the estate on the basis of an intestacy and, initially, obtained a grant of letters of administration to the use and benefit of aunt Anne. Christine had told Emma about the conversations with Ashley, but Emma had brushed them aside on the basis that a will could only be validly made in writing and with witnesses. Later, Emma’s husband came across the concept of privileged wills on the internet. After counsel and solicitors had been consulted, an action was commenced to revoke the grant pronounce in favour of a privileged will.

The court accepted Christine’s evidence of the conversations with the deceased, describing her as a straightforward and reliable witness and the evidence as ‘overwhelming’.

The issue then was whether the words used demonstrated that he had sufficient intention to make a will. Langan J held that it is unnecessary for the validity of a privileged will that the testator knew that he was making a will – what is required is that he intended deliberately to give expression to his wishes as to what should be done with his property in the event of his death (see Re Stable [1919]). Here, the words used, the seriousness with which the deceased spoke 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.

Counsel for those entitled on intestacy argued that the section 11 privilege is restricted to those serving or engaged to serve on British-­registered ships. This was not correct. There is nothing in the context or purpose of the legislation to indicate that the section should be restrictively construed.

The phrase ‘being at sea’ in section 11 has been construed as extending to those who were ‘under orders’ to join their ship. The deceased was to be regarded as having been ‘at sea’ on the second occasion. The evidence showed that he had at that time been instructed to join his ship and his activity was thereafter directed towards preparation for the voyage, Re Wilson (deceased) [1952] PDAD followed. What had happened in 1985 was less well documented and the evidence was equivocal. The court, therefore, pronounced in favour of the 1990 will. That would revoke any previous will, including the 1985 one.

The importance of good attendance notesPractitioners can be forgiven for feeling a little jaundiced about will making. There is increased competition from unqualified will writers and it is difficult to charge at a level proportional to the risks involved. The recent decision in Martin v Triggs Turner Barton [2009] EWHC 1920 is a salutary reminder of the need for good attendance notes (see also the comments in Sprackling v Sprackling [2008] EWHC 2696 (Ch) earlier this year).

A solicitor had drafted a will leaving the residue of the husband’s estate to his wife for life, and the remainder to charity. The will included a power to advance £100,000 to the wife. She contended that it should have been a power to advance all but the last £100,000. As she had been present at the discussions over the will, this was a straightforward difference in understanding of what had been agreed and the judge preferred the wife’s version, among other reasons, because there was no full attendance note, just ‘notes on the draft will’, and some pages from a ‘counsel’s note book’.

The firm’s problems with the life tenant in Martin v Triggs Turner Barton did not end with the disagreement over the power of advancement. After the testator’s death, the solicitor dealing with the administration told the widow that she was unlikely to be entitled to a widow’s pension. The solicitor agreed to write to the Department of Social Security and did so. The letter stated that the writer believed that the widow was in touch with them direct concerning any widow’s pension payable, and asked for confirmation of this fact. The DSS did not reply and the solicitor did not chase the DSS for a reply. The widow did not ask the solicitor about the state widow’s pension again.

It later emerged that the widow was entitled to a pension and lost the opportunity to claim the benefits that would have been paid between 2000 and 2007 (valued at £25,047).

Floyd J held that while, ordinarily, an executor does not owe a duty to advise a beneficiary in connection with the affairs of the beneficiary: see Cancer Research Campaign v Ernest Brown [1998] PNLR 592; [1997] STC 1425, that rule is subject to the principles about assumption of responsibility and reasonable reliance.

In the judge’s opinion, the solicitor assumed responsibility to advise the widow about her pension entitlement, and to take steps to find out whether her belief in the non-entitlement was correct. The circumstances of the relationship were such as to make it reasonable for the widow to rely on the solicitor, so creating the necessary duty of care.

He accepted the solicitor’s evidence that this was done as something of a favour, but said that it was done in a professional context in which it was reasonable for a recipient of the information to assume that it would be done with due care.

He declined to find any contributory negligence on the part of the widow. Once responsibility had been assumed, there was nothing she needed to do. As a result, the widow had lost the benefits that would have been paid.

Perhaps a warning to solicitors to think carefully before offering to help?

Professor Lesley King, College of Law, London