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New Provision to Make Enacting Wills Easier

By Jim Garamone
American Forces Press Service

WASHINGTON, Jan. 4, 2001 – A little known provision of the 2001 Defense Authorization Act will make it easier for the last wishes of service members to be carried out.

"This new federal law recognizes a special, uniform way to prove an individual's testamentary intent", said Col. George Hancock, chief of the Armys legal assistance division.

At the heart of the change to "military testamentary instruments" -- or wills -- is a standard "self-proving affidavit" at the end of the will. The affidavit contains the service members acknowledgment of the will and affidavits of the witnesses to the will. "The affidavit indicates that the will was signed in accordance with the required formalities," Hancock said.

Before this legislation, there was no uniform Federal self- proving affidavit. Instead, legal assistance attorneys searched for appropriate state provisions for the client. "Todays reality is that military legal assistance attorneys are frequently expected to rapidly prepare wills for many deploying service members," Hancock said. "Adequate time to research State procedural law, then add that to the will, and execute the will according to the varying procedural requirements of each state or territory is seldom available." This new law will establish a single self-proving affidavit for legal assistance clients wills. It is a special alternative to different State requirements and should better assure the client that a probate court will accept his will. Also, this should reduce the likelihood that the surviving family member would experience difficulties probating the will. This is one less problem to deal with while grieving.

Under the new law, a military testamentary instrument should be admitted to probate in state court proceedings without additional witnesses or affidavits. This is important since, by our very nature, military members are mobile, and it may be difficult to find the witnesses when the testator dies. The self-proving affidavit ensures the will is probated without such hassles.

This does not mean a will cannot be challenged. "It is still subject to contest on grounds such as undue influence, lack of testamentary capacity or prior revocation," Hancock said.

Military legal assistance offices may begin using the new provision later this year after DoD issues a directive that is now circulating among the services.

Existing wills are not affected by this change - a will already valid remains valid.

Hancock stresses that it is important for service members to not wait until they are deploying to make decisions on their estate plan. Soldiers, sailors, Marines and airmen should discuss their estates with their families and visit installation legal assistance officers for help.

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