A military testamentary instrument is sometimes called a “military will.” It is a last will and testament as described by federal statute 10 USCS § 1044d. It can be executed only by or on behalf of a person who is eligible for military legal assistance. Like any other type of will, for a military testamentary instrument to valid, certain formalities must have been present at the time it was executed. It must be executed by the testator in the presence of a military legal assistance counsel acting as presiding attorney and in the presence of two witnesses. Like a will, it takes effect upon the death of the testator. It has the same effect as a will that was prepared and executed according to the laws of the state in which it is presented for probate.
In In re Johnson, the wife of decedent Johnson filed a petition for probate along with a military testamentary instrument purporting to be Johnson’s last will and testament. For an instrument to be admitted to probate, the general rule is that it is up to the proponent to prove that the document complies with the requirements of New York law. Under EPTL § 3-2.1(a), for a will to be valid, the requirements are:
- The testator must have signed the instrument at its end