The Relevancy of Privileged Wills of Members of Armed Forces:

Enhancing the Role of the Armed Forces Council

Faridah Hussain

Mohd Hisham Mohd Kamal

, Akmal Hidayah Halim

, and Tajul Aris Ahmad

Bustami

Faculty of Law, Universiti Teknologi MARA, Shah Alam, Selangor, Malaysia

Ahmad Ibrahim Kuliyyah of Laws, International Islamic University Malaysia, Jalan Gombak, Selangor, Malaysia

Keywords: Armed Forces, Council, Malaysia, Privileged will.

Abstract: This paper aims to highlight the relevancy of privileged wills and the power of the Armed Forces Council to

come up with the relevant policy to enable members of the regular forces of Malaysia to execute privileged

wills in Malaysia. Recognising the dangerous global nature of duty faced by members of the armed forces,

many countries have granted them the exclusive right of making privileged wills including making a written

will with no witnesses or oral will whose contents could be proved by only one witness. The law provides

that the members of the armed forces are free to make a will informally on a temporary basis while on actual

military service or while being at sea. For this purpose, this paper adopts a qualitative research methodology

as it provides a deeper understanding relating to privileged wills in Malaysia. This paper concludes that the

law relating to privileged wills is still relevant and important as a way forward in the 21st century. Their

position of preparedness in duties for the preservation of life and property makes it necessary for them to be

privileged personnel. The Armed Forces Council should exercise its power under the Federal Constitution.

1 INTRODUCTION

The statute governing privileged wills in the States of

Peninsular Malaysia is the Wills Act 1959. The

relevant section applicable for privileged wills is

section 26 of the Wills Act 1959.

Section 26. “Privileged wills of soldiers, airmen and

sailors.

(1) “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.”

Sabah has a different provision of law for making

privileged wills. Privileged wills in Sabah is governed

by section 137 of the Sabah Wills Ordinance. Section

137 provides:

“Any soldier being employed in an expedition or

engaged in actual warfare, or an airman so employed

or engaged or any mariner being at sea, if he has

completed the age of twenty-one years, dispose of his

property by a will made in the manner provided in the

following section. Such wills are called privileged

wills.”

The Armed Forces of Malaysia may be engaged

in operations that include war, invasion, riot,

insurrection and civil disaster whether actual or

apprehended. The members of the Malaysian army,

the Royal Malaysian Navy and the Royal Malaysian

air force who are in action against armed mutineers,

armed rebels, armed rioters and pirates are placed in

dangerous situations. They are subject to service law

and must obey the lawful command of the superior

officer in a prompt and immediate compliance failing

which they will be charged for disobeyance to

standing orders. Due this situation, the Wills Act

1959 provides that soldiers and airmen in actual

military service and members of the naval forces

while being at sea may execute a will without

complying with formalities.

The concept of actual military service has been

adopted by Courts in determining whether a will is

made in actual military service and whether the will

may be admitted to probate. In actual military service

and active service” means “in expeditione” and

involved mobilization. Pilcher J. in the case of In the

Estate of Rippon [1943] P. 61; [1943] 1 All E. R. 676

Hussain, F., Kamal, M., Halim, A. and Bustami, T.

The Relevancy of Privileged Wills of Members of Armed Forces: Enhancing the Role of the Armed Forces Council.

DOI: 10.5220/0010054301710174

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 171-174

ISBN: 978-989-758-482-4

171

decided on the issue as to whether a soldier is “in

actual military service” to enable him to make a

privileged will under section 11 of the English Wills

Act, 1837. The court held that it depends on the facts

of the case. As defenders of the government, who

defend by sea, they have a right to enjoy the special

privilege to make a will (Schouler, 1915). The

explanation regarding the exception in favour of

soldiers’ will can be seen in many cases (see In re

Limond; Limond v. Cunliffe [1914-15] All ER Rep

214; In the Estate of Stanley [1916] P 192; In the

Estate of Robert Myles Heywood [1916] P 47; In the

Estate of John Wardrop, Deceased [1917] P 54; In re

Stable Dalrymple v. Campbell [1918-19] All ER Rep

299 and In the Estate of Grey [1922] P 140). The

privilege of making a valid soldier’s will is not

dependent upon the military position or education of

testator (see May v. May (Note) [1902] P 103).

Wills executed by privileged personnel are

privileged wills and is to be considered by the High

Court in the application for probate by the O. 71 r. 15

of the Rules of Court 2012 which reads:

“Wills of persons on military service and seamen.

If it appears to the Registrar that there is prima

facie evidence that a will is one to which section 26

of the Wills Act 1959 applies the will may be

admitted to proof if the Registrar is satisfied that it

was signed by the testator or, if unsigned, that it is in

the testator’s handwriting.”

However, even though the provision of law about

privileged wills is clearly mentioned in the Wills Act

1959 and Sabah Wills Ordinance, there is no specific

reference relating to privileged wills in the Armed

Forces Act 1972 leading to difficulties for the Armed

Forces Council to issue orders and policies relating to

privileged wills. Hence, this paper aims to highlight

the relevance of privileged wills to a special group of

personnel that is; soldiers, airmen and members of the

naval forces of Malaysia.

2 MATERIALS &

METHODOLOGY

For the purpose of the research, this paper employs a

qualitative method of research and uses the doctrinal

case study approach. The doctrinal analysis includes

an analysis of reported cases, journal articles and

statutes. In addition, in order to obtain information

and opinions, questionnaires were distributed to

members of the armed forces of Malaysia. Thus, this

paper consists of statistics in the form of tables and

charts for easy understanding.

3 RESULTS & DISCUSSION

3.1 Privileged Personnel and the Law

in Peninsular Malaysia, Sabah and

Sarawak

The statute governing privileged wills in West

Malaysia is the Wills Act 1959, and the relevant

section applicable for privileged wills is section 26 of

the Wills Act 1959. Section 26 of the Wills Act 1959

provides 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 the guardianship, custody and tuition of a

child or may exercise a power of appointment

exercisable by will by a privileged will. As such,

soldiers, airmen, mariners or seamen (including

members of the naval forces of Malaysia) are

privileged personnel. Section 26 of the Wills Act

1959 led to the exception in favour of soldiers’,

airmen’ and members of the naval forces’ wills. They

may execute will without complying with formalities.

Subsection 26 (3) of the Wills Act 1959 provides that

a privileged will means any declaration or

disposition, oral or in writing, made by or at the

directions of the testator. The High Court in the

application for probate will require the original copy

of a will executed by the testator who is either a

soldier or airman in actual military service or a

member of the naval forces while being at sea.

Section 137 of the Sabah Wills Ordinance allows

a soldier, an airman and any mariner being at sea to

make a privileged will in Sabah. However, for

soldiers, their entitlement to make a privileged will is

subjected to if they are in an expedition or engaged in

actual war. As for airmen, their right to make a

privileged will is subjected to, if they are so employed

or engaged. The provision provides that mariners are

entitled to make privileged wills if they are being at

sea.

There is no such Enactment or Ordinance for

Sarawak, providing for privileged wills. As such, the

courts shall apply English common law and rules of

equity, together with statutes of general application,

as administered or in force in England on the 12th day

of December 1949. It is under section 3(1) of the Civil

Law Act 1956. However, the said common law, rules

of equity and statutes of general application should be

applied so far only as the circumstances of the States

of Malaysia and their respective inhabitants permit,

and subject to such qualifications as local

circumstances render necessary.

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3.2 The Relevancy of Privileged Wills

in Malaysia

From 5th February 2017 until 30th June 2017, the

researchers distributed questionnaires to 176

members of the armed forces of Malaysia. They were

asked about the importance of making a will “in

actual military service” and while “being at sea”.

They were also asked on the point of whether the law

on privileged wills should be preserved to enable

them to make a will “during actual military service”

and while “being at sea”. For the purpose of this

study, among 176 of them, 41 of the respondents are

soldiers, 70 of them are airmen, and 65 of them are

members of the naval forces of Malaysia.

Table 1 and Figure 1 below represent the views of

soldiers, airmen and members of the naval forces (the

respondents) regarding whether the making of a will

is important for them when they are “in actual

military service” or “being at sea”.

Table 1: Views of soldiers, airmen and members of the

naval forces on making a will.

Response Result Percentage

Strongly agree 67 38

Agree 100 57

Disagree 2 1

Strongly

disagree

4 2

Not sure 3 2

Total 176 100

Figure 1: Views of soldiers, airmen and members of the

naval forces on making a will.

Table 2 and Figure 2 below represent the views of

the respondents regarding the law on privileged wills

should be preserved to enable them to make a will

“during actual military service” and while “being at

sea”.

Table 2: Views of soldiers, airmen and members of the

naval forces on privileged wills.

Response Result Percentage

Strongly agree 67 38

Agree 103 58

Disagree 1 1

Strongly

disagree

4 2

Not sure 1 1

Total 176 100

Figure 2: Views of soldiers, airmen and members of the

naval forces on privileged wills.

There is an indicator that making a will is

important for soldiers, airmen and members of the

naval forces of Malaysia when they are “in actual

military service” or “being at sea”. Also, there is an

indicator that the members of the armed forces of

Malaysia agreed that the law on privileged wills

should be preserved. It is identified, supported and

verified from the views of members of the armed

forces of Malaysia.

3.3 Legal Analysis on the Relevancy of

Privileged Wills in Malaysia

It has been observed that due to the dangerous global

nature of duty faced by members of the armed forces,

many countries have granted them the special right of

making privileged wills including making a written

will with no witnesses or oral will whose contents

could be proved by only one witness. Privileged wills

are relevant and important as soldiers, airmen and

sailors (including members of the naval forces of

Malaysia) may dispose of their properties during

difficulties in obtaining advice and assistance to make

a formal will (Faridah Hussain et al., 2016). A few

authors mention that privilege is granted by almost all

governments to military service personnel who are

ready to serve the country at the first sign of conflict

that often arises without prior warning (Beyer et al.,

2003).

In the Malaysian context, though not in a state of

war, it has been its practice to contribute soldiers to

The Relevancy of Privileged Wills of Members of Armed Forces: Enhancing the Role of the Armed Forces Council

173

peacekeeping forces under the auspices of the United

Nations. Hence, the validity of a will made by

members of the armed forces in actual military

service or while being at sea is essential. In the

application for probate, the High Court will determine

whether the will may be admitted to probate. In such

cases, evidence from the military department will be

essential to support the application for probate in

privileged will’s cases.

Section 2 of the Armed Forces Act 1972 (Act 77)

provides that “Armed Forces Council” means the

council established under Article 137 of the Federal

Constitution. Nevertheless, the provision of law about

privileged wills is not provided in the Armed Forces

Act 1972. This situation has caused difficulties to the

Armed Forces Council to issue orders or policies

relating to the execution of privileged wills. As such,

it is practical and necessary that the Armed Forces

Act 1972 should enumerate privileged wills as a

matter on which the Council can make orders. This is

in line with Article 137 of the Federal Constitution

which gives responsibility to the Council for the

command, discipline, administration of and all other

matters relating to the armed forces.

The proposed amendment to the Armed Forces

Act 1972 will allow the Council to come up with the

relevant policy and guideline relating to privileged

wills. It follows that legal offices from the war

department may advise the members of the armed

forces, in actual military service or being at sea, on

their privileged rights.

4 CONCLUSIONS

The law allows the members of the armed forces to

execute a will informally on a temporary basis while

on actual military service or while being at sea. Their

position of preparedness in duties for the preservation

of life and property makes it necessary for them to be

privileged personnel. As such, relaxing the rules of

will-making in favour of these privileged personnel is

allowed if these personnel comply with the conditions

provided by section 26 of the Wills Act 1959 and

section 137 of the Sabah Wills Ordinance.

With the proposed amendment to the Armed

Forces Act 1972, it would allow the Armed Forces

Council to draft policies and orders relating to

privileged wills for members of armed forces. As

these members are serving their countries or the

United Nations, their welfare, as well as that of their

families, should be taken care of. If the will is made

informal, the evidence from the war office or the

relevant war department may be necessary. The

Armed Forces Council is to assist and should come

out with the policy on this issue. This should be the

attitude going into the era of the 21st century.

ACKNOWLEDGEMENTS

This paper is part of the first author’s Ph.D study

registered with Ahmad Ibrahim Kulliyyah of Laws,

International Islamic University Malaysia, (IIUM)

and sponsored by Universiti Teknologi MARA

(UiTM), 40450 Shah Alam, Selangor Darul Ehsan,

Malaysia.

REFERENCES

Armed Forces Act 1972 (Act 67).

Beyer, G.W., Smith, K.L., and Owens, J.A., 2003.

Introduction to military wills, Texas Tech University

School of Law. Texas.

Civil Law Act 1956 (Revised 1972) (Act 67).

Faridah Hussain, Mohd Hisham Mohd Kamal, Akmal

Hidayah Halim, and Tajul Idris Ahmad Bustami., 2016,

‘Privileged wills in Malaysia: The sustainability of

privileged wills among soldiers’, Journal of Asian and

African Social Sciences, vol. 2, no. 3, pp. 61-73.

Federal Constitution.

In the Estate of Grey [1922] P 140.

In the Estate of John Wardrop, Deceased [1917] P 54.

In the Estate of Rippon [1943] P. 61; [1943] 1 All E. R. 676.

In the Estate of Robert Myles Heywood [1916] P 47.

In the Estate of Stanley [1916] P 192.

In re Limond; Limond v. Cunliffe [1914-15] All ER Rep

214.

In re Stable Dalrymple v. Campbell [1918-19] All ER Rep

299.

May v. May (Note) [1902] P 103.

Re Leese’s Goods (1853) 17 Jur 216, 21 LTOS 24.

Rules of Court 2012 (P.U.(A) 205/2012).

Sabah Wills Ordinance (Sabah Cap. 158).

Schouler, J., 1915. Law of wills, executors and

administrators, Bender. London, 5th edition.

Wills Act 1959 (Revised 1988) Act 346.

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