Military Will Laws

A military will (technically, a “military testamentary instrument”) is a special type of will created by someone who is an armed forces member. Military wills have differences from traditional wills and make some exceptions to the usual testamentary requirements of a will. In general, military wills are more flexible. Finally, unlike other wills, they are governed by federal law, not state law.

Why Should I Have a Military Will?

Military personnel may have a special need for more flexible probate and estate planning procedures. Military personnel tend to relocate often and may need to deploy to a different part of the country or the world, sometimes under dangerous circumstances.

In response, the Floyd D. Spence National Authorization Act was signed in 2000 by President Clinton. This was done largely to consider these frequent re-locations and short-notice deployments. This Act partly provides that military wills can be executed using federal requirements rather than individual state laws.

Under this Act, military wills:

• Are exempt from the general form, formality, or recording requirements of state probate laws
• Have the same legal effect as valid wills that are per state probate laws

What are the Requirements for a Will?

Wills must be created and signed with certain requirements met. These include:

• Age: The testator (the will-maker) is required to be 18 years of age or older
• Capacity: The testator is required to be of sound mind at the time they sign their will
• Intent: At the time a will is created, the testator is required to have the present intent to make the will
• Signature: A will must be signed and dated
• Written: In some states, a will must be written to be valid. In any state, a will should be written because it is difficult to prove the validity and the desired gifts of an oral will
• Witnesses: The testator must sign the will in the presence of two uninterested witnesses

For a military will, federal law imposes additional requirements. These requirements include:

• The testator must be someone eligible for military assistance.
• The will must make a disposition of the testator’s property.
• The will takes effect at the testator’s death.
• The will document must be witnessed by two uninterested witnesses and military legal assistance counsel. For purposes of the will, an “uninterested witness” is a person who does not stand to gain or receive anything from that particular will document.
• The will must be notarized, usually by the military legal assistance counsel.
• There must be a statement that the will is a Military Testamentary Instrument.

It is also best to provide information within the military will document regarding the testator’s military status and grade.

What Is the Difference Between a Traditional Will and a Military Will?

Soldiers and sailors have long been exempt from the above stringent requirements of a traditional will. Because a sailor or soldier is close to extremely dangerous conditions, it is seen as appropriate that they can change their will as they see fit to accommodate their dangerous occupation. As such, anyone in “actual military service” has a lower standard when drafting their will.

Military wills differ from traditional wills in several ways:

• The military will can be oral or written,
• The drafter of a military will can be a minor,
• The requirement of a witness is reduced to one, and sometimes none at all,
• The drafter of a military will can be in any physical or mental condition, and
• Only the personal estate of the drafter of a military will can be devised, not any real estate.

Some of these considerations are important if a service member suddenly is in a dangerous situation and does not have the time or ability to create a new written will.

What are Some Common Military Will Disputes?

As with any will document, military wills can be subject to disputes or conflict. For instance, a will dispute can arise when a family member or other beneficiary attempts to challenge a provision in the will. These types of disputes can be broad and may involve several legal issues. Some common military will disputes may include:

• Challenge to the Person’s Military Status: If the testator is not a valid member of a branch of the U.S. armed forces, it is possible that their will might not be considered valid under federal law. This can happen, for instance, if it is found that the person was never a part of the military or if their membership in a branch is no longer valid (e.g., dishonorable discharge). In such cases, the provisions in the will might also be invalid.
• Challenges Regarding the Distribution of Property: A family member or beneficiary may disagree about how property will be distributed according to the person’s military will. They may complain that they did not receive the proper amount of property or have issues regarding a single item of property (such as a valuable family heirloom). This is a common situation with many types of wills, not just military wills.
• Disputes Involving the Witnesses: As mentioned, a military will document to be witnessed by military legal assistance counsel and two uninterested people. One issue could be where the legal counsel is not the proper military personnel, thus rendering the will invalid. Another situation is where one or both witnesses are interested in the military will. These may cause issues with the will’s validity under federal law.
• Challenge Regarding Undue Influence Over the Will: Undue influence is an amount of influence that causes the testator to act without free will or real choice, perhaps even against their best interests. In a will contest, to prove undue influence, the will contestant must generally show the existence of an influence, the effect of which is to overpower the mind of the testator, and the product of that overpowering is a will or a gift in the will, that would not have been made but for the undue influence.

These types of disputes can be complex. They may require additional legal processing and representation to resolve the conflicts that arise.

Do I Need a Lawyer to Help Drafting a Military Will?

To meet the requirements for creating a valid military will, it is best to seek the services of a wills lawyer familiar with military law. Although a civilian lawyer or a form will help you comply with all legal requirements, the will may not necessarily meet the requirements for a military will and give you the special status of a military will.

Furthermore, if you are having a dispute over the estate of a soldier or sailor or are contesting a will, or if someone else is contesting a will in which you have an interest (you are receiving a gift or you are a family member who has been excluded from receiving a gift through the will) and think that military will is an issue, it is recommended that you contact a military will lawyer. Usually, only a military attorney can explain the issues and help defend your rights adequately.