Re Berry

• Jurisdiction: New Zealand
• Judgment Date: 01 July 1955
• Date: 01 July 1955
• Court: Supreme Court

New Zealand, Auckland Supreme Court.

(North J.)

In re Berry.

War — Meaning of — Actual Hostilities and de jure State of War — Validity of Will of Member of New Zealand Armed Forces Posted to Korea — Will Made “on actual military service.”

The Facts.—Berry, a soldier in the New Zealand Army, was posted to Kayforce1 and was directed to enter Waiouru Camp in New Zealand for training. Whilst in this camp, and when under the age of twenty-one years, Berry executed a will. Subsequently, in September 1952, he left New Zealand for Korea and was there killed in action in the armed conflict which was then taking place.

The validity of his will was attacked, and it was necessary, in order to uphold the will, to show either that at the time of making the will the testator was a soldier “on actual military service”, and thus entitled to the privilege extended by s. 11 of the Wills Act, 1837, or that at that time he was a member of Her Majesty's Forces “during any war in which Her Majesty the Queen may … be engaged” and thus was entitled to the benefit of s. 3 of the Soldiers' Wills Emergency Regulations, 1939

Held: that the will was made “on actual military service”.

The Court said: “… The circumstances in which a military force from New Zealand was sent to Korea have been set out, for the assistance of the Court, in a letter from the Minister of External Affairs, addressed to the plaintiff's solicitors. The Minister, speaking on behalf of the Government, said that in June 1950 the Security Council of the United Nations determined that the armed attack upon the Republic of Korea by forces from North Korea constituted a breach of the peace. After some preliminary steps had been taken, the Security Council, in pursuance of its functions under the United Nations Charter, recommended that the Members of the United Nations furnish such assistance as might be necessary to repel the armed attack and to restore international peace and security in Korea. New Zealand land and sea forces were sent to Korea in accordance with these and other decisions made by the appropriate organs of the United Nations. These forces were made available to, and served under, the Unified Command established at the instance of the United Nations. The New Zealand forces were engaged in active hostilities and suffered casualties. The Government said that it regarded the employment of New Zealand forces in Korea as arising from...