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Surrogate’s Court considered whether a Military Testamentary Instrument should be admitted to probate.  In re Johnson, 69 Misc.3d 357 (N.Y. Surr. Ct. 2020)


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
  • Two attesting witnesses must have been present when the testator signed the instrument, or the testator must have acknowledged their signature to the witnesses
  • The testator must have declared the instrument to be their will in the presence of the attesting witnesses
  • The testator must have asked the attesting witnesses to sign the instrument, and they signed it within 30 days of each other

The court noted that the proponent of the will had made a prima facie showing that the military testamentary instrument met all but one of New York’s last will and testament requirements. The outstanding issue was related to the requirement that the testator sign the document at the end. The reason for this requirement is to avoid fraudulent attempts to add provisions to the will at the end, after a will had already been signed.

Here, instead of signing the document at the end, the decedent signed his military testament instrument at the bottom of each page.  The court had to determine if this was sufficient.  Acknowledging the rationale behind the requirement and its importance, the court also noted that a will or other instrument should not be destroyed simply because it failed to adhere to strict technical requirements. Instead, the court should look to see if the purpose of the formal requirements have  been otherwise met.

The court noted that signing each page actually promotes the statute’s purpose.  By signing each page, the testator acknowledged that each page was indeed authentic and not fraudulent.  Thus, an assumption can be made that the spirit of the statutory requirement was complied with.

The court also noted that even if it had determined that the instrument was not in compliance with each requirement of New York law, the Surrogate’s Court would still have to admit the military testamentary instrument as long as it was properly executed as a military testamentary instrument. Federal law states that the proponent of a military will is not required to demonstrate that the instrument was duly executed in compliance with state law formalities.  To qualify for this federal exemption, the document and its execution must meet the following requirements:

  • It must have the proper Military Testamentary Preamble
  • It must have been executed by a person who was eligible for military legal assistance
  • The execution of the document must be notarized by a military legal assistance counsel, or by a notary supervised by military legal assistance counsel
  • The execution must have been witnessed by at least two disinterested witnesses
  • Each of the witnesses must have attested to witnessing the testator’s execution by signing the instrument
  • It must be accompanied by a proper Military Testamentary Instrument Self-Proving Affidavit

The decedent’s military testamentary instrument complied with these requirements.  Accordingly, the court admitted it to probate.

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