Making a will is an acknowledgment of one’s mortality, as the act makes clear when, what and how much is to be left to one’s family and friends.
Despite this rather somber coming to terms with the end of our lives, wills are good to make; they usually prevent misunderstandings amongst survivors.
As Civil War veteran, short story writer, and journalist Ambrose Bierce once wrote, somewhat tongue-in-cheek, “Death is not the end. There remains the litigation over the estate.”
The Traditional Will
A legal document, a will sets forth one’s last wishes regarding the distribution of his or her property and the care of any minor children.
For a traditional will to be valid, one needs to be of sound mind, be an adult of 18 years or older, affirm that the document is his or her will, and then sign and date it in the presence of two or three witnesses.
Although making a will is relatively simple and straightforward, it is worth nothing that between 50 and 70 percent of American adults do not have a will.
When one does not have a will, contention can ensue. As a consequence, lawyers will make money as they will decide who gets what.
The Military Will
Members of the military have long been exempted from the conditions governing the drawing up of a traditional will.
The reason for this difference begins with the Roman general Julius Caesar’s willingness to exempt his legions from having to adhere to the strict requirements of the Roman law for wills.
His assumption was that Roman soldiers and sailors were “better acquainted with weapons than with books and their ignorance of the laws of peace [was] proportionate to their skill in arms.”
From that time forward, other rulers and governments, including ours, have followed the Roman example.
A military will:
- Can be oral or written
- Only requires one witness, and sometimes none at all
- Can be drafted in any health condition or state of mind
- May be drafted by a minor
This system of exemption works; however, it also has its downside. Because documentation of military members’ informal wills was scant, problems arose as to whether or not the will truly reflected the service member’s last wishes.
One reason for the confusion resided in the fact that the 50 states have varying requirements of “form, formality and recording,” and as a result a service member’s will could be ruled invalid.
Arrow Air Flight 1285
These problems of validity became very clear in the aftermath of the December 12, 1985 crash of the flight moments after take-off from Gander International Airport in Newfoundland, Canada.
On board were 248 soldiers assigned to the 101st Airborne Division. All perished. And while many of them had wills, it was discovered that some of those wills were invalid because they were not of the correct “form, formality and recording.”
Bierce’s quote proved to be true; litigation ensued over the estates of some of the deceased.
Congress eventually addressed the issue of the various state’s laws governing the making of wills by servicemembers.
In the 2001 defense authorization bill, the solons recognized a special type of will by what is called a Military Testamentary Instrument.
The act is clear – servicemembers are exempted from the individual states’ varying requirements of “form, formality and recording.”
In a statement that would make Caesar smile, Gerry W. Beyer, a professor of law at Texas Tech University, said that “a will meeting the requirements of this section will be valid in all states even if the will does not meet the requirements imposed by a particular state.”
He also added that the law was modified in 2016 to allow civilian paralegals serving in military legal assistance offices to execute military testamentary documents.
Making a Will
If you are currently serving in the military, then click here.
If you are retired from the military and do not have a will, then consider enlisting the services of an attorney and drawing up one by clicking here to get started.
For those individuals who already have a will, it is wise to check it over every so often.
In any case, what one needs to do is to follow a simple and straightforward process and make a will – and in the process make Bierce’s quote meaningless.
Read about which states don’t tax military retirement (and the 8 that do).