A military will is a special type of will that is created by someone who is a member of the armed forces. Military wills may have differences from traditional wills and may make some exceptions to the usual testamentary requirements of a will. Usually, the components and form for a valid will document are dictated by the state the individual lives in at the time they create a will.
In addition, military wills generally provide more flexibility and are governed by federal law. It is important to understand how these types of wills are different and what the various requirements are for them.
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 take into account these frequent re-locations and short-notice deployments. This Act in part, 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 law; and
- Have the same legal effect as valid wills that are in accordance with state probate laws.
What are the Requirements for a Military Will?
Military wills are still associated with will requirements. These are requirements that must be met in order for the will to be valid under federal law. A military will is considered legally valid if certain requirements are met. These requirements include:
- The will must be executed by the testator (the person creating the will), who 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 military legal assistance counsel, as well as two uninterested witnesses who have signed the instrument; and
- There must be a statement that the will is a Military Testamentary Instrument.
It is also best to provide documentation of the testator’s military status and grade within the military will document. 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.
What are Some Common Military Will Disputes?
As with any type of 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 a number of 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 (ex: dishonorable or honorable 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 have issues or disagreements with the way that property is to be distributed according to the person’s military will. They may have a complaint that they did not receive the proper amount of property; or, they might 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 needs to be witnessed by military legal assistance counsel as well as two uninterested people. One issue could be where the legal counsel is not actual the proper military personnel, thus rendering the will invalid. Another situation is where one or both of the witnesses actually have an interest in the military will. These may cause issues with the will’s validity under federal law.
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 for Help Drafting a Military Will?
To meet the requirements for the creation of a valid military will, it is best to seek the services of a wills, trusts, and estates lawyer who is familiar with military law. Although a civilian lawyer or the use of a form will can 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.