Ayling v Summers & Ors

A privileged will under section 11 of the Wills Act 1837 may be made by any mariner or seaman who satisfies the statutory condition of being “at sea”. The provision is not restricted to service on British-registered or British-owned vessels. A seaman may be “at sea” before boarding where he is definitely engaged and under orders to join a particular ship. Testamentary intention requires an intended disposition of property on death, conveyed as a request, express or implicit, that the wishes be acted upon. The court upheld the later nuncupative will, revoked the grant of administration and directed a grant of probate.

Ashley Servoz-Gavin died intestate, and Emma Summers obtained letters of administration. The claimant, Anne Ayling, later alleged that Ashley had made privileged nuncupative wills in 1985 and 1990, leaving his estate to her. The defendants disputed the alleged conversations and argued that section 11 of the Wills Act 1837 applied only to mariners serving on British vessels. They also disputed whether Ashley was “at sea” when the alleged wills were made. The court decided the factual issue, the required testamentary intention, the territorial scope of the privilege and the meaning of “being at sea”.

1. Evidence and intention. The court accepted Christine Dinoulis’s evidence that Ashley made the relevant statements in 1985 and 1990. A privileged will does not require the testator to know that he is making a will. It requires an intentional expression of wishes about the disposition of property after death, intended to convey an express or implicit request that those wishes be carried out. Ashley’s words, seriousness, direction that Christine listen, and reliance on her to act satisfied that test.
2. Scope of section 11. The words “any mariner or seaman” have their ordinary meaning and are not limited to persons serving on British-registered ships. “National service” is not a statutory requirement. Section 2 of the Wills (Soldiers and Sailors) Act 1918 did not justify implying such a restriction. The court treated the earlier references to British naval or merchant service as obiter and found support for a non-restrictive construction in In the Goods of Donaldson.
3. Meaning of “at sea”. The phrase extends beyond a person already aboard ship. It includes a mariner who is definitely engaged to join a particular ship and is preparing for that voyage. Applying that test, Ashley was “at sea” in February 1990: he had obtained instructions, was arranging the required visa and was travelling to join the CPLB Crawler. The evidence was insufficient to establish the same status in May 1985.
4. Disposition. The 1990 will revoked any earlier will, including the alleged 1985 will. The grant of letters of administration was revoked, the court pronounced in solemn form in favour of the 1990 will, and a grant of probate was directed to Anne Ayling or her attorney. The judge expressed a provisional view that the parties’ costs should potentially be paid from the estate.