Validity of a Soldiers Will

[corisande]

While researching Lt David Arthur Rutherford (more on him on this link), I came across this in his TNA file

However when probate came about, Miss Schulte was not granted it

How was this sort of dispute settled? It appears from the Army's legal advice that the will was legal

I went on to look at Miss Schulte, whom one feels must have changed her name to Miss Desmond to avoid anti-German problems, though it could have been a stage name. She married in 1931 under name Schulte

My limited research on her (on this link) revealed that her father was one of the 2 Germans who founded the Triumph Motor Cycle Company in Coventry

And of course the British Army purchased hundred of these cycles from Triumph in WW1

There were 2 Artillery officers who disappeared in Ireland and their bodies never found (story on this link) . They were riding motor cycles and the inquiry showed that Rutherford was indeed riding a Triumph. But it was never recovered.

[Heid the Ba]

It isn't clear from the certified copy whether "D. A. Rutherford" is a signature or simply where Lt. Rutherford was planning to sign. If the former then the Will is valid but may need to be proved, if the latter it is not valid. If it wasn't valid then it would fall to a family member to be appointed executor dative and the estate would be distributed accoring to the law of intestacy.

The Will doesn't appoint an executor, only a beneficiary, so it is possible that the father was appointed as the executor but Miss Schulte did receive the estate.

This comes with the caveat that I work in a different jurisdiction and my knowledge of the law 90 years ago is shaky.

I choose to think of Miss Schulte using the stagename Drummond (and having changed her christian names as well) as she was a racy sort disapproved of by the family but exactly the type of woman a young chap should be interested in.

Edit for clarity.

[Magnumbellum]

My presumption is that the will failed because the testator's signature was not witnessed. Had the will not been contested, it is possible that probate might have been granted to Miss Schulte, but clearly Mr Rutherford, senior, applied for administration of the estate on the basis that there was no valid will, and intestacy rules were applied..

Clearly the testator was aware of the need for witnesses, as the will is laid out allowing designated spaces for the signatures. The will was also made out a year before the death. This is different from the traditional "Soldier's Will", written on a scrap of paper just before going into battle. In those cases, I believe, the absence of witnesses has not invalidated a will, particularly if no-one contests it.

[corisande]

The Will doesn't appoint an executor, only a beneficiary, so it is possible that the father was appointed as the executor but Miss Schulte did receive the estate.

I am not a lawyer. I never thought of that. It certainly looks as if that is the answer.

So if an executor is not named, the next of kin gets the job?

I don't think Miss Schulte was short of a bob or two in her family who had bankrolled the Triumph company, and Rutherford left very little, though his father was rich

I agree on changing the Christian names pointing to a stage name. I have trawled for someone with her "Miss Desmond" as a stage name, but have not found anyone

[Heid the Ba]

I am not a lawyer. I never thought of that. It certainly looks as if that is the answer.

I am a lawyer and I nearly missed it.

So if an executor is not named, the next of kin gets the job?

I don't know what happened then, but nowadays (in Scotland at any rate) there is a heirarchy of those who can be appointed executor, starting with beneficiaries under a Will, then spouses, then children, then parents, siblings etc. down to creditors. I don't know how a parent would have ranked against a sole beneficiary then.

Edit for clarity and completeness.

[Heid the Ba]

My presumption is that the will failed because the testator's signature was not witnessed. Had the will not been contested, it is possible that probate might have been granted to Miss Schulte, but clearly Mr Rutherford, senior, applied for administration of the estate on the basis that there was no valid will, and intestacy rules were applied..

I don't think we can make those assumptions; if the Will was signed but not witnessed then it is possible to set it up with affidavits etc. stating that it matches the deceased's stated intentions. Whether the Will is contested or not the prospective executor must satisfy the court that the Will is valid, or that they stand to be appointed under intestacy.

[corisande]

Not sure if I can afford the lawyers fees on this one

I think I have the answer to the difference between executor and beneficiary

Whatever happened, the Army must have had a difficult problem - missing soldier, girlfriend, father.

The next trick is to find out who she was (apart from just being the daughter of the man that half owned Triumph)

[Heid the Ba]

Not sure if I can afford the lawyers fees on this one

My advice may be worth exactly what you have paid for it.

[RaySearching]

Looking at your link into your research on Angelina Not at Home on the 1911 census

Angelina (Lena) is at Boarding School (the cliff 1 St John's Road Eastbourne on the 1911 census

Regards Ray

edit apologies it already stated on your link that lena is at boarding school I should pay more attention to what i am reading

ray

[corisande]

Thanks,

It is only when someone else does the work for me that I realise now that Lena equals Angelina.!

I found her later marriage announcement in the Times

She seems to change her name periodically. The GRO entry is for "Angelina I J Schulte" but the wedding announcement is for "Pauline Wendy Schulte", whereas the Soldiers will has "Pauline Patricia Desmond"

[corisande]

edit apologies it already stated on your link that lena is at boarding school I should pay more attention to what i am reading

Not your mistake, it is the speed I work, I had just altered it after reading your post

[punjab612]

My presumption is that the will failed because the testator's signature was not witnessed. Had the will not been contested, it is possible that probate might have been granted to Miss Schulte, but clearly Mr Rutherford, senior, applied for administration of the estate on the basis that there was no valid will, and intestacy rules were applied..

You can obtain a copy of the probate grant and will from the Probate court for £5 details here http://www.justice.g...ily-history.htm

Peter

[corisande]

Thanks Peter

I have just printed out the form and will send it off

[Kathie]

I cannot imagine why this young woman couldnt just choose one name and stick to it. However, as far as the will is concerned I do think there was an injustice done. Herewith is my legal opinion from the colonies for what it is worth. I wrote it about ten nine years ago when researching one soldier - bit boring for general readership but may be interesting for this thread. Of course it is "only" SA (ie Roman Dutch law) at that stage.....

This is my first ever attachment - I dont know how to indent it or italicise it or show that it is an attachment.

Kathie

A Soldier’s Will

Normans’ mother signed his death notice on 21 May 1917 at Clumber stating that he had left both a will and an estate exceeding £300 in value.

In fact, Norman had left two wills. Both were hand written on a small sheet of paper in his notebeook especially provided by the Army for that purpose. His first will is dated June 1916 and reads as follows:

“WILL

In the event of my death, I give the whole of my property and assets of whatsoever nature to my mother (Mrs Eliza Jean Purdon). In the event of her death my property and effects of whatsoever nature shall be equally divided among my brothers and sisters. I appoint Ashton S Bradfield as executor”.

The second will is dated 24 November 1916 and reads as follows:

“On active service

In the event of my death I give the whole of my property and effects to Mrs EJ Purdon

Clumber

Via Grahamstown

South Africa

NC Purdon

PTE No 4348

St SAI

24/11/1916.”

It was this latter will of November 1916 upon which all authorities relied for dealing with Norman’s Estate.

Under South African law, a ‘soldier’s will’ has always been dealt with differently than the will of persons not faced with imminent danger. The Roman military will could be made in any manner or form, in writing or orally, without the legal number of witnesses and without observing any of the requisite formalities of the ordinary will. The early authorities such as Grotius and Voet permitted a soldier’s will to be valid without any formalities whatsoever – even if made orally – and it remained in force for a year after the soldier’s discharge from service. The military will is accepted as privileged by all but Dutch authors. Dutch authors such as Voet, Van Leeuwen and Vinnius, considered that for a written military will no witnesses were necessary, provided the will was in the handwriting of the testator, but where the will was made orally then two witnesses were required because the evidence of one witness was not legitimate proof

The question of witnesses is only relevant to the proof of the will. If the will was in the soldier’s own handwriting or signed by him, it was considered that there was sufficient proof of the will and witnesses might only be necessary to identify the handwriting or the signature. They need not be present at the time of the making of the will, though no doubt, if they were, they would provide useful additional evidence. Such witnesses do not form part of the formalities of the will; they are as the saying goes, not required ad solemnitatem, but ad probationem, and consequently are not essential.

Accordingly, by the time of Norman’s death, it was generally accepted that “a military will can be made in any manner or form without witnesses and can be established by any credible and competent evidence even of a single witness, whether corroborated or not”. However, the Great War understandably led to a number of instances in which the wills of young men who had died or been killed were queried or needed to be validated by the courts. Those cases which came before the courts all dealt with written military wills and not oral wills. However, the rule about the privilege of the military will was simply stated with no reference made to the need of any number of witnesses.

Thus, in Ex Parte Harper 1918 – 23 G W L 62, Archibald Harper had been a corporal in the South African Medical Corps, served in East Africa for over two years and was then invalided home in December 1917 to Durban where he died on 21 January 1918. He had written a will in his pay book, dated February 16 1916, when he was on active service. He left all his property to his mother who survived him. Affidavits were sworn by his brother and sister that the will in the pay book, although not signed by the deceased, was in his handwriting. The court held that “It is clearly laid down by the authorities that any expression by a soldier on act of service of his wishes with regard to the disposal of his property, if deliberately made, will be given effect to as a will. It is sufficient if the Court is satisfied by competent evidence that he did so express his wishes. Here his brother and sister have sworn that the will is in his handwriting and I am satisfied that it is. Being satisfied, I have no hesitation in declaring this to be a valid will and authorising the Master to act on it.”.

In Ex Parte Scheuble 1918 TPD 158, the testator was married in community of property and he and his wife had made a joint will. Thereafter, the husband went on active service in December 1915 to German East Africa. On 4 January 1916, he made the will which was the subject of the application. This will was executed by the testator in his own handwriting in his soldier’s pay book. Judge President De Villiers wrote: “There is no doubt that a soldier is entitled to make a will of this nature, and there is no doubt also that the testator was on active service, and we must take the words of the will as they are. In these circumstances we have come to the conclusion, that,… the court must give effect to his will as expressed in the document”. The full court also held that this later will revoked the prior will insofar as the two were inconsistent.

Ashton Seymour Bradfield, whom Norman had appointed his executor, was a storekeeper at Clumber. He was about thirteen years older than Norman and not in the Army. In 1906 he had married Norman’s cousin, Edith Purdon who was the daughter of James’s elder brother, William Henry, and Elizabeth Cockcroft . A .S. Bradfield was himself the son of Josiah and Ellen Cadwallader Bradfield. His mother was perhaps the daughter of that first Clumber schoolmaster.

Grahamstown attorneys, Dold and Stone, attended to administration of Norman’s Estate .

[corisande]

Kathie

Thanks for that, a fascinating story in your soldiers will, and it just goes to show that a soldiers will is something to look into when researching.

In a way I find it surprising how few "Other Ranks" actually wrote wills.

They can bring out the differences between the parents and the soldier's preference for a woman that the parents either feel unsuitable or that he has not known her long enough