Texas is not only one of the largest states in the nation, but it is also one of the largest sponsors of military bases. In fact, nearly all members of the United States Air Force begin their military tours in San Antonio. It is rare to stroll along the tranquil Riverwalk without passing at least a few of the Air Force’s newest inductees on a break from training. As such, San Antonio, along with many other cites in Texas, have embraced our nation’s protectors who work and play amongst the Texas natives.
A military member may seek estate planning assistance from a civilian probate lawyer. This lawyer must then decide whether to prepare a will and related documents knowing that there is a very high probability that the documents will eventually be used in a state other than Texas because the service member is likely to be domiciled in another state and the residence of service members is usually in flux. The civilian lawyer should consider recommending that the service member consult with a military lawyer who is familiar with the special circumstances of service members. This month’s article provides insight for the civilian attorney into the history of military wills and the unique status recently afforded to the “military testamentary instrument.”
Military personnel always stand ready to serve and protect the United States at the first sign of conflict. Unfortunately, conflict often arises with no warning. Military personnel have been called to war with little time to place their affairs in order prior to departure. As such, a service member may be in a hostile or treacherous situation before realizing that he or she has not prepared a will. Some soldiers die without wills. Others make oral wills or find scraps of paper to jot down their disposition desires. Through the history of both the civil and common law, governments have made exceptions for wills written by soldiers in actual military service and sailors at sea.
Today, a few states continue the tradition of relaxing formalities for soldiers’ and sailors’ wills. These state legislatures, however, often impose restrictions limiting these wills to personal property or restricting the value of bequeathed property.
The Texas Wills Act of 1840 provided that “any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his chattels without regard to the provisions of this act.” This provision remained part of Texas law until the enactment of the 1955 Texas Probate Code. The Interpretative Commentary indicates that the decision to omit special provisions for military wills was in part based on the fact that they were rarely used. In fact, it appears that only one Texas case discussed the effect of the statute, and then only briefly and by way of dicta. Hill v. Joseffy, 259 S.W.2d 760 (Tex. Civ. App.—San Antonio 1953, writ ref’d).
Despite the lack of a special provision for military wills, informal wills fare quite well in Texas. First, wills entirely in the decedent’s own handwriting are valid under Tex. Prob. Code § 60 even without witnesses. Second, oral wills for personal property are allowed if the testator is, among other things, in his or her last sickness which could include being mortally injured during battle. See Tex. Prob. Code §§ 64-65.
A military lawyer is subject to two unique perspectives of military life which impact the ability to prepare a service member’s will: the continued relocation of military personnel and the operational tempo for military actions.
A common factor in military life is constant relocation. Military personnel rarely homestead in a state for longer than three to four years before being transferred to a new duty station in another state. This relocation applies to military lawyers as well. Military lawyers are licensed to practice law in at least one state but they often find themselves based in a state other than the lawyer’s state of license. However, military lawyers are authorized to practice law for the military without being licensed in the particular state in which they reside. 10 U.S.C. § 1044. Estate matters, along with other issues, are governed by state law and thus, military lawyers frequently find themselves presented with issues requiring attention to unique state statutes. The continued relocation of a military lawyer hinders the lawyer’s ability to become familiar with the laws of the state in which the lawyer is based as well as the laws of the states which may eventually be applicable to a will and other estate planning documents (e.g., the service member’s domicile and residence, both current and future).
The operational tempo for military actions also plays a significant role in a military lawyer’s practice of law. Due to the often short-notice of worldwide deployment, military lawyers are required to draft wills quickly for military service members on a large scale basis. Because speed is essential in drafting these wills, military lawyers lack adequate time to research state law issues.
Military lawyers often depend on will drafting software which provides guidance on the applicable will formalities. If the will software, however, is not current, a military member may find that he or she has executed an invalid will for which neither the service member’s domiciliary state nor the federal government provide force and effect.
On the morning of December 12, 1985, an Arrow Airlines flight transporting 248 United States soldiers, crashed shortly after takeoff from Gander, Newfoundland, Canada. The soldiers were returning home to Kentucky after a six-month tour of duty in the Sinai. All aboard perished in the crash. See Tragedy at Gander, http://www.qmfound.com/gander.html. Prior to the Gander crash, the automated will-drafting software mentioned above was not available to military lawyers. Rather, military lawyers were called upon to participate in large-scale deployment readiness exercises where lawyers were tasked to provide valid wills for deploying forces in a short period of time. Military lawyers did their best to conform the wills to the specific execution requirements applicable to each service member. However, following the Gander crash, it was discovered that several of the soldier’s wills were invalid and perhaps provided for distributions contrary to the soldier’s wishes. The testamentary disaster following the Gander crash crystallized the realization that “military personnel have a special need for probate procedures which take into account their frequent reassignments and their susceptibility to short-notice deployment.” Major Gene Martin, Exemption of Military Wills from State Law Requirements: Where There is a Will, is There a Way? at 6. Thus, in an effort to assist military service members, both those who seek a will and those who draft them, Congress passed The Floyd D. Spence National Defense Authorization Act to establish a “military testamentary instrument” entitled to special exemptions from state law execution requirements.
On October 30, 2000, President Clinton signed the Floyd D. Spence National Authorization Act for Fiscal Year 2001. Included within the act is Section 551, providing for a “military testamentary instrument” and exempting such instruments from state law formalities. The statute was codified in 10 U.S.C. § 1044d.
§ 1044d. Military testamentary instruments: requirement for recognition by States
(a) Testamentary instruments to be given legal effect.--A military testamentary instrument--
(1) is exempt from any requirement of form, formality, or recording before probate that is provided for testamentary instruments
under the laws of a State; and
(2) has the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in
which it is presented for probate.
(b) Military testamentary instruments.--For purposes of this section, a military testamentary instrument is an instrument that is
prepared with testamentary intent in accordance with regulations prescribed under this section and that--
(1) is executed in accordance with subsection (c) by (or on behalf of) a person, as a testator, who is eligible for military legal
(2) makes a disposition of property of the testator; and
(3) takes effect upon the death of the testator.
(c) Requirements for execution of military testamentary instruments.--An instrument is valid as a military testamentary
instrument only if--
(1) the instrument is executed by the testator (or, if the testator is unable to execute the instrument personally, the instrument is
executed in the presence of, by the direction of, and on behalf of the testator);
(2) the instrument is executed in the presence of a military legal assistance counsel acting as presiding attorney;
(3) the instrument is executed in the presence of at least two disinterested witnesses (in addition to the presiding attorney), each
of whom attests to witnessing the testator’s execution of the instrument by signing it; and
(4) the instrument is executed in accordance with such additional requirements as may be provided in regulations prescribed
under this section.
(d) Self-proving military testamentary instruments.--(1) If the document setting forth a military testamentary instrument meets
the requirements of paragraph (2), then the signature of a person on the document as the testator, an attesting witness, a
notary, or the presiding attorney, together with a written representation of the person’s status as such and the person’s
military grade (if any) or other title, is prima facie evidence of the following:
(A) That the signature is genuine.
(B) That the signatory had the represented status and title at the time of the execution of the will.
(C) That the signature was executed in compliance with the procedures required under the regulations prescribed under
(2) A document setting forth a military testamentary instrument meets the requirements of this paragraph if it includes (or has
attached to it), in a form and content required under the regulations prescribed under subsection (f), each of the following:
(A) A certificate, executed by the testator, that includes the testator’s acknowledgment of the testamentary instrument.
(B) An affidavit, executed by each witness signing the testamentary instrument, that attests to the circumstances under which
the testamentary instrument was executed.
(C) A notarization, including a certificate of any administration of an oath required under the regulations, that is signed by the
notary or other official administering the oath.
(e) Statement to be included.--(1) Under regulations prescribed under this section, each military testamentary instrument shall
contain a statement that sets forth the provisions of subsection (a).
(2) Paragraph (1) shall not be construed to make inapplicable the provisions of subsection (a) to a testamentary instrument that
does not include a statement described in that paragraph.
(f) Regulations.--Regulations for the purposes of this section shall be prescribed jointly by the Secretary of Defense and by the
Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Department of the
(g) Definitions.--In this section:
(1) The term “person eligible for military legal assistance” means a person who is eligible for legal assistance under section 1044
of this title.
(2) The term “military legal assistance counsel” means--
(A) a judge advocate (as defined in section 801(13) of this title); or
(B) a civilian attorney serving as a legal assistance officer under the provisions of section 1044 of this title.
(3) The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, and each possession of the United States.
A military testamentary instrument is an instrument prepared with testamentary intent and in accordance with the requirements of 10 U.S.C. § 1044d. To qualify as a military testamentary instrument, the instrument must be executed pursuant to § 1044d on behalf of a person, acting as a testator, who is authorized to receive military legal assistance and must provide for a property disposition of the testator to take effect upon the testator’s death. In essence, a military testamentary instrument is a military will executed pursuant to federal requirements on behalf of a person authorized to receive military legal assistance.
The effect of § 1044d is to exempt “military testamentary instruments” from all state law formalities, thus granting such instruments the same force and effect as a will prepared and executed pursuant to the requirements of local state law. Mimicking other acts aimed at easing military life such as the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), the practical effect of § 1044d is to ensure that service members may “devote their entire energy to the defense needs of the Nation.” Michael A. Kirtland, Civilian Representation of the Military C*L*I*E*N*T, 58 Ala. Law. 288, 289 (1997).
An example of the preemptive powers extended by § 1044d arises with regard to will formalities. While most states require a written will to be attested to by two witnesses, a few states, such as Vermont, require three witnesses. Vt. Stat. Ann. tit. 14, § 5 (2002). Under § 1044d(c)(3), a military testamentary instrument need only be executed in the presence of two witnesses. Thus, if a Vermont will were executed and witnessed by two witnesses pursuant to § 1044d, the will is valid under Vermont law even though it did not satisfy the state law requirement of three witnesses.
Along with service members, families are afforded utmost importance in military circles. Providing for the actual military member alone is often deemed insufficient; rather, the families of these individuals must also be accommodated. Like many other benefits which extend to both service members and their dependents, § 1044d extends the military testamentary instrument exemptions to dependents of service members. The definition of military testamentary instrument includes wills executed by a person “who is eligible for military legal assistance.” § 1044d(b)(1). Eligibility to receive military legal assistance, as defined in § 1044(a), encompasses active military members as well as their dependents.
Section 1044d(c) sets forth the requirements for the execution of a military testamentary instrument. It provides that the testamentary instrument must be executed by the testator in the presence of a military lawyer and at least two disinterested witnesses who attest to witnessing the will execution.
Section 1044d(d) provides that a will executed in accordance with the provisions set forth in paragraph (c) is automatically self-proving. In other words, an individual’s signature, coupled with a designation of the individual’s military rank, as testator, a witness, notary, or presiding attorney is prima facie evidence that the individual’s signature was a genuine representation of the signatory’s status at the time of will execution and that the signature was executed in compliance with § 1044d.
To provide notice to everyone handling a military testamentary instrument, § 1044d(e) requires that a statement be included in the instrument setting forth the general provisions relating to the instrument’s exempt status from state formalities. The statement, proscribed by the Department of Defense, is as follows:
This is a MILITARY TESTAMENTARY INSTRUMENT prepared pursuant to section 1044d of title 10, United States Code, and executed by a person authorized to receive legal assistance from the Military Services. Federal law exempts this document from any requirement of form, formality, or recording that is provided for testamentary instruments under the laws of a State, the District of Columbia, or a commonwealth, territory, or possession of the United States. Federal law specifies that this document shall receive the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate. It shall remain valid unless and until the testator revokes it.
Department of Defense Directive 1350.4, April 28, 2001; Enclosure 1.
To fully implement § 1044d, subsection (f) provides for the prescribing of implementing regulations by the Secretary of Defense. Department of Defense Directive 1350.4, issued April 28, 2001, is one such regulation. In addition to providing general definitions and requirements relating to the military testamentary instrument, DODD 1350.4 provides a sample self-proving affidavit for a military testamentary instrument. The self-proving affidavit sets forth the additional requirements that the testator/testatrix be at least eighteen years of age or emancipated, of sound mind, and under no constraint or undue influence. DODD 1350.4, Enclosure 2.
Section 1044d has the effect of trumping state law. Although a will executed pursuant to § 1044d may fail to conform to specific state law formalities, the will is deemed valid. However, in most cases there will be no conflict among wills executed pursuant to state law and those executed pursuant to § 1044d as the requirements of a “military testamentary instrument” closely resemble the requirements of most states. While no reported case was located, it is in those instances where state law is preempted by § 1044d that a Tenth Amendment challenge could be raised.
The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Nowhere in the Constitution is the federal government granted the power nor the States denied the power to regulate testamentary disposition. Rather, per the Tenth Amendment, the power to regulate testamentary matters is reserved to the States. In fact, courts have consistently held that this power lies with the States and not the federal government. “Part of the residue of sovereignty retained by the states, a residue insured by the Tenth Amendment, is the power to determine the manner of testamentary transfers of a domiciliary’s property and the power to determine who may be made beneficiaries.” United States v. Burnison, 339 U.S. 87, 91-92 (1950).
Although the states are left with the power to regulate testamentary matters, the federal government is granted broad authority to regulate the military. In this respect, § 8 of Article I of the Constitution grants Congress the power to declare war, make and support armies, provide and maintain a Navy, and make rules for governing and regulating land and naval forces. The power of Congress in this respect is “broad and sweeping.” United States v. O’Brien, 391 U.S. 367, 377 (1968).
The power to regulate testamentary matters is reserved to the states and has clearly been established by the courts. If state testamentary laws are trumped by a will executed pursuant to § 1044d, a Tenth Amendment challenge could be raised on the grounds that § 1044d invades the province of state sovereignty. The question to be answered by the court faced with such a challenge is whether the grant of power given to the federal government to regulate militaries is broad enough to incorporate the governance of military testamentary instruments. The issue would be one of first impression, as § 1044d has yet to be challenged under the Tenth Amendment. In fact, there are few cases that deal with the federal government’s exercise of its power to regulate militaries in the arena of probate law.
The leading case of a Tenth Amendment challenge to the federal government’s exercise of its war powers in the arena of probate law is United States v. Oregon, 366 U.S. 643 (1961). The state of Oregon asserted the unconstitutionality of a federal statute that provided for the escheat to the United States of personal property of a veteran who dies in a VA hospital without a will or legal heirs. 38 U.S.C. § 17 (repealed 1958). Such property was to be used by the federal government to support veterans’ homes. The escheat provision of the federal statute violated Oregon laws which provide for escheat of any property of an individual who dies without a will or legal heirs. Although the disposition of a testate or intestate deceased’s estate is a matter of probate law reserved to the states, the United States Supreme Court determined that the federal statute fell within the war powers of Congress.
Congress undoubtedly has the power—under its constitutional powers to raise armies and navies and to conduct wars—to pay pensions, and to build hospitals and homes for veterans. We think it plain that the same sources of power authorize Congress to require that the personal property left by its wards when they die in government facilities shall be devoted to the comfort and recreation of other ex-service people who must depend on the Government for care. The fact that this law pertains to the devolution of property does not render it invalid. Although it is true that this is an area normally left to the States, it is not immune under the Tenth Amendment from laws passed by the Federal Government which are, as is the law here, necessary and proper to the exercise of a delegated power.
Id. at 648-49.
In light of the precedence established in United States v. Oregon, a challenge to § 1044d seems unlikely under the Tenth Amendment. In fact, § 1044d, along with related provisions of § 1044 granting the federal government preemptory powers in the area of probate law as to military powers of attorney and advance medical directives, have remained unchallenged. See 10 U.S.C. §§ 1044b-1044c.
The will of a military member may be valid despite its noncompliance with local law if it qualifies as a military testamentary instrument. However, when a civilian attorney assists a service member, the attorney must still comply with state formalities. A will drafted by a civilian attorney does not qualify as a military testamentary instrument entitled to special status under § 1044d.
The will of a military member should include language reflecting the person’s status as a member of the military. This puts all those handling the will on notice that they are dealing with the estate of a military member entitled to special benefits. In addition, attorneys should inquire into the client’s burial wishes. Many military members wish to be buried with military honors and be buried in cemeteries reserved for veterans. Such wishes should be indicated in the service member’s estate planning documents.
When probating the will of a military service member, attorneys should be aware of three key benefits frequently available to family members. First, military bases provide assistance to family members of deceased military personnel through casualty assistance offices. These offices provide detailed information on benefits available to survivors.
Second, attorneys should determine whether the deceased service member participated in the Servicemen’s Group Life Insurance which may provide benefits up to $250,000. See http://www.insurance.va.gov/sgliSite/default.htm.
Third, "[m]ilitary bases, through their legal assistance offices, also provide free attorneys to family members for the preparation of wills (and sometimes trusts), advice about probate and life insurance beneficiaries and counseling about related issues, such as powers of attorney, living wills, advance care directives, etc. The branch of service is irrelevant (e.g., a Navy widow can go to an Army legal assistance office, an Air Force widower can visit a Coast Guard LAO), and these offices frequently have good written resources or attached Reservists who can help out. Another source of free information to the public is the Public Page of the Army's Judge Advocate General website -- www.jagcnet.army.mil/legal. There are many articles, outlines, summaries, checklists and handouts there which can be helpful to the surviving family members - and to the service member contemplating the preparation of a will." E-mail from Col. USAR (Ret.) Mark Sullivan to Gerry W. Beyer (Sept. 16, 2003).
In publishing this article, the author is not engaged in rendering legal, accounting or other professional service. If legal advice is required, the service of a competent professional should be sought.
© 2003 Gerry W. Beyer