In the 1888 book "Camp-fire Chats of the Civil War," C.F. Matteson, a former Union soldier from the 17th Illinois Infantry, recounted the story of a comrade named "Bob," who was gravely ill with measles in a camp in Missouri and wanted to give his last will and testament orally to him. But instead of deciding who got his personal property, Bob instead dictated the precise manner of what was expected to be his imminent burial. He wanted to be interred face down, with his head pointed eastward and a clam shell in each hand. Matteson felt compelled to ask why. The seemingly dying soldier explained to him that in the event that the angel Gabriel suddenly decided not to blow his horn and summon him to the hereafter, he wanted to be in a position where he could tunnel under the Mississippi River and come up in his home state.
Fortunately Bob — whom Matteson recalled as a bit of a joker — managed to recover from his illness, and survived combat to return to Illinois without the need to tunnel out of his grave. But the notion of a soldier or sailor making a last-minute, informal last will and testament on the battlefield or at sea — perhaps spoken, or else scribbled hastily on whatever scrap of paper was handy — actually was a thing that combatants in peril once did. There's a long tradition of countries giving military service members leeway to leave behind informal wills that courts often accepted, even though they didn't conform to the usual formalities expected of civilian wills.
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Ancient Roman Beginnings
As this vintage University of Chicago Law Review article details, informal soldiers' wills actually date back to ancient Rome, when Julius Caesar was the first to exempt his legions from having to follow the strict requirements of Roman law for wills. The assumption was that soldiers and sailors were more familiar with weapons and fighting than with the law. The Romans, though, did require at least two witnesses to a military will, and the document was only valid if a man died within a year of being discharged from service.
Over the centuries, other rulers and governments often followed the Roman example. During World War I, many British soldiers carried handwritten wills with them into battle, tucked into their pay books. This 2013 BBC News story describes the testament of a private named Joseph Ditchburn, who left his clothes and his bicycle to his mother. "It is a very nice machine and worth a lot of money, and I have paid for its repair, and if there is any extra to pay, pay for it," he instructed. Ditchburn was shot in the abdomen during fighting along the French-Belgian border in October 1914, and died from his wounds in a hospital. (This British government website allows users to search for and request the wills of soldiers who died between 1868 and 1996.)
But while that arrangement benefited those who hadn't had the opportunity to get to a courthouse to bequeath their money and personal property or specify other last wishes, it also had its downside. Because the documentation of military members' informal wills sometimes was scant, it could be tough to document whether they really reflected the person's last wishes.
In the U.S., where individual states had their own rules concerning military wills, things could get complicated. As this 2003 article on military wills details, military lawyers often were called upon to draft wills for large numbers of soldiers before they were deployed, and the sheer volume made it difficult to make the wills conform to the requirements of a service member's particular state. As a result, after a December 1985 air crash in Newfoundland that killed 248 U.S. soldiers, it was discovered that some of the deceased service members' wills turned out not to be valid.
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The Military Testamentary Instrument
In 2000, as part of a defense authorization bill, Congress recognized a special type of will for service members called a military testamentary instrument, which is exempt from individual states' varying requirements of "form, formality and recording." Instead, the law specified some clear-cut basic requirements for a military will. It has to be signed in the presence a military lawyer, for example, and two witnesses who don't have an interest in the will are required. There's a self-proving affidavit at the end, in which the service member attests that the will follows all those rules.
The law is intended to prevent potential messes that might ensue if, for example, a court in Vermont rejected a soldier's will because it wasn't backed up by the three witnesses normally required there.
"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," Gerry W. Beyer, the Governor Preston E. Smith Regents Professor of Law at Texas Tech University and an expert on estate planning, explains in an email.
Beyer, who co-authored the 2003 article on military wills mentioned above, says that the law was modified slightly in 2016, to enable civilian paralegals serving in military legal assistance offices to execute military testamentary documents.
Aside from how military wills are validated, Beyer says that there's really not much difference between those documents and civilian wills. "A military will under the statute would meet the requirements of almost all states if not all of them," he says.
The new law doesn't necessarily preclude all challenges to a will's validity. As detailed in this Department of Defense press release issued after the law took effect, it's still possible to contest a military will on grounds such as undue influence or prior revocation.
