A will is a macabre document. It is a recognition by the object of the will, the living person (the testator) who is making the will out, that they will cease to exist. The will exists and enforces the conditions of the testator after they have died and invokes certain conditions at the distribution of assets and personal effects.
Wills have a strong presence in the legal framework of any democracy being that the represent the property of a person and their wishes and instructions to the distribution of the property. In the Province of Ontario the Succession Law Reform Act outlines some specific conditions regarding the creation of a military will that reflects the importance of the document to the testator and the unusual circumstances they may find themselves when the feel the need to create a will:
Will of member of forces on active service[i]
5. (1) A person who is,
(a) a member of the Canadian Forces placed on active service under the National Defence Act (Canada);
(b) a member of any other naval, land or air force while on active service; or
(c) a sailor when at sea or in the course of a voyage,
may make a will by a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness.[ii]
Thus, there is a formal legal recognition that circumstances could exist for a service person where they wish to create a will and that the normal legal requirements for witnesses are superseded by the nature of the military duty.
During World War 1 many service records include wills and soldiers enlisting or conscripted would be encouraged to make a will. These wills were often on page handwritten in pencil and inserted into the pay book and service record for reference. The sample below is most typical of the wills found in non-commissioned officers and private soldiers. One page, in this case written in pen but not witnessed.[iii]
In the event of my death I give the whole of my Property and effects to my mother Mrs. Marry-Ann Burleigh. 270 Wellington St. West. Chatham Ont.
Signature William Riley Burleigh
Rank and Reg. Pt. 124197
Note that this page was removed from his pay book sometime after his death and forwarded to the Estates Branch of the Militia Department on November 12, 1917.
Private Burleigh’s will is very typical of those seen in other Private soldiers’ service records. A young man of 18 enlists October 1915 and approximately 2 months prior to being attached to the 18th Battalion, while he was still in England.
In the case of Private Robert H. Burgess, D.C.M. his will is replete with instructions:
Canadian Expeditionary Forces
Stationed at Sandling Camp
August 6, 1915
67 Moore Park Road
Fulham, London, S.W.
If it so happens that I am allowed to die for my country, I wish that Alice Mary West take the few dollars and real estate that I own in this country & in Canada vis:
- Deposited in the [illegible] Band in Canada St. Thomas branch. One Hundred & five dollars more or less [in a] sealed packet.
- Two lots in Moose Jaw Sask. Canada in the Sunnyside Addition.
- A portion of a lot in Moose Jaw Sask. Canada in the C.P.R. Addition.
The details of these lots will be found in the above mentioned sealed packet.
- Remainder of Army pay credited to me.
- Plot at -inter [Minister] on Sea Isle of Sheppey, England.
- A House in Marville Road Fulham London S.W. England.
The best method to transfer the above items will be as follows.
- Have the Bank deposits & sealed packet which contains the title deeds of the above lots transferred to any Bank in England. Preferably to a bank which Alice’s or my people have had or now do business with. The sealed packet contains, besides my own title deeds a title deed of Harry Dean’s.
This deed is only to be surrendered on the payment of fifty dollars $50 (at least 10 Pounds) from him or his next of kin. To located Harry Dean write to Care of:
Mr. J. Taylor
Heywood Lane, England
If that fails to find him the Assessor at Moose Jaw, Sask. Canada will know his whereabouts.
2 & 3 The procedure to realize the real estate in Moose Jaw Sask. Canada will be this [to] advise the Mayor of Moose Jaw of the location of the property and the circumstances by which it was transferred. Ask him to place them on the market. The value of real estate in any part of Canada can be ascertained by writing the editor of “Canada”, “Canada Monthly” or other magazine containing information about the Dominion. It is not always advisable to hole the lots for a price, as the taxes won’t warrant it. Father has also a letter with information regarding the same lots & inventory of material [stored?] on them.
- That Army pay credited to me should be paid to my Father in due time & transferred to Alice Mary West.
- Plots at Minister on Sea can be transferred very easily. As regards to a part ownership in a plot at Minister write Mr. [illegible] 11 Cedars [illegible] Chiswick
- The house in Marville Road Fulham England must not be transferred until my Father has received his full equity from it. It must be kept by his until such time as the house has cleared itself.
If a simple & more satisfactory way can be found to transfer the above items it should be used.
Pte. R.H. Burgess. Jun.
18th Battalion C.E.F.
Pte. R.H. Burgess, 53659
September 1st, 1915
Note Separate document.
Pte. R.H. Burgess, No. 53659, 18th Battalion.
In contrast to the previous will by Private Burleigh, this will is explicit in its instructions and rich in detail. Private Burgess was a carpenter by trade and 29 years old, in contrast to Private Burleigh who was 18 years old and a car conductor. It appears that Private Burgess was a man of property with interests in Moose Jaw, Saskatchewan; Marville Road, Fulham[v], England; and Minister on Sea on the Isle of Sheppey on the south-east coast of England. The will elucidates in specific detail on how is estate is to be apportioned and, though probably lost forever to history, Alice May West is to be the primary benefit of the will. A review of his service record gives no indication as to the relationship Private Burgess has to Alice May West. Was she a girl friend, sister, or someone else in his life.
Private Burgess was a very organized man and had also specified that upon his death a G.W. Saxton, Esq. of 86 Curzon Street, Toronto, Ontario be also notified of his death. The manner and structure of the document indicates such and such details as instructing his estate contact the Mayor of Moose Jaw to affect the sale of his property in this city shows how much Canada has changed. Perhaps this would be a normal way to do this, assuming Private was known to the Mayor.
What is striking is the sentiment at the beginning of the will:
“If it so happens that I am allowed to die for my country…”
Private Burgess most certainly means England. The distinction between the Commonwealth country of Canada, still tied legally, politically, economically, judicially, and culturally to the United Kingdom almost makes this a certainty. It is curious to note Privates Burgess’ ties to Moose Jaw, yet he attested on October 22, 1914 in St. Thomas, Ontario. Perhaps business and other dealings prevented him from joining the First Canadian Contingent but he did enlist at the very start of the enlistment process of the 18th Battalion and became one of the “Originals” of the Battalion.
Private Burgess earned his Distinguished Conduct Medal at the Somme, mostly likely on the attack of September 15, 1916 were so many of the 18th Battalion perished. His service record shows being reported missing on that date but officially he is not listed killed in action until March 15, 1917.
His will was then fulfilled and Alice May West may not have even known that she was to benefit from Private Burgess’ death.
Let Private Burgess’ D.C.M. citation speak for him now:
For conspicuous gallantry and resource during operations. When, owing to casualties, the crews of some machine guns found themselves without escort, Private Burgess, although wounded, organized escorts of bombers, and assumed command until he was wounded seriously a second time.
[i] Part 1: Testate Succession. Succession Law Reform Act [Ontario], R.S.O. 1990, Chapter S.26
[ii] Emphasis mine.
[iii] Most of the facsimiles seen in other records are witnessed.
[iv] Private William Riley Burleigh did not survive the war. He died of wounds on July 9, 1917 after a shell burst in his billet.
[v] This property may be 67 Moore Park Road, Fulham, London, England. This address is the address of Private Burgess’ father though it may refer to another property in the same area.