HCR Law Events

29 July 2021

Military wills – exercise caution!

With the news that troops are to remain in Afghanistan to continue to provide training to local Afghan units, the risks associated with life in the Armed Forces remains at the forefront of the minds of serving personnel and their loved ones.

Serving personnel will want to make sure that they do all they can to provide for their loved ones, including making a will. Although the Ministry of Defence offers a basic will form for service personnel through form MOD 106, care should be taken when using this form without the benefit of proper advice.

Two separate cases that have crossed my desk over the course of the past year have highlighted the potential pitfalls in using this form without having taken legal advice.

In essence, form MOD 106 amounts to a homemade will and the problem with homemade wills in general is that the people drafting the will (you) may not have the legal knowledge required to make sure that what you draft does what you intended it to do.

For instance, one issue I have seen concerned the payment of debts from a deceased’s estate – debts form part of a person’s estate and need to be taken into account when drafting a will.

In some cases, debts can be charged to a specific asset (e.g. a mortgage charged against a property). Where a debt is charged to a particular asset, the starting position is that the debt follows the asset – so the person who receives the property under a will takes on the debt. This would be the case unless there is a contrary intention shown in the will.

Unsecured debts, such as credit cards, also need to be considered – how would you want those debts to be settled?

For example, if you wanted to leave a cash sum of £5,000 to Beneficiary A, with Beneficiary B receiving all your remaining estate, who would you want to be responsible for discharging any debts? Would this be A, B or both?

Form MOD106 can (and has) created legal arguments around the issue of debts and who is responsible for paying them. In line with the MOD’s advice, even if you have already put in place a will using Form MOD 106, advice should be taken on its content.

We offer serving and retired service personnel a 10% discount on our services, including the drafting of wills.

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About the Author
David King, Partner (TEP)

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