The Deployment Will

[Captain Theresa A. Bruno]{.smallcaps}[^1]

> *In most systems of enlightened jurisprudence, the strict observance
> of those formalities required in the execution of ordinary testaments
> is dispensed in favor of the wills of seamen and soldiers. This
> indulgence granted to the military and naval professions seems to be
> based on solid and sufficient reasons. Soldiers and seamen are
> generally but little acquainted with men and business habits. They
> are, for the most part, unsuspicious and confiding, and fall an easy
> prey to the artful and designing. Their mode of life is such, that the
> materials to make a will, in situations of extremity, are not always
> at hand; and they are sometimes unexpectedly called to the battlefield
> with such slight premonition, that they scarcely have time more than
> to announce to the bystanders their wish as to the testamentary
> disposition of their property.*[^2]

### I. INTRODUCTION

Senior Airman Sarah Winston is notified on a Monday morning by her first
sergeant that she is deploying to the Kingdom of Saudi Arabia on
Wednesday with a group from her unit, the 21^st^ Space Wing's Civil
Engineer Squadron.[^3] She receives and follows a detailed list of
things she must accomplish before leaving. She stops at the Military
Personnel Flight, receives a briefing from representatives of the Office
of Special Investigations, and updates her parental control power of
attorney at the legal office. However, when asked by the paralegal at
the legal office if she needs a will, she indicates she recently
executed a will and does not need a new one.

Captain Gladys Miller from the base legal office is notified that a
mobility processing line for the 21^st^ Civil Engineer Squadron is
scheduled for Wednesday at 5 *a.m*. She packs her deployment kit, with
fill-in-the-blank wills, a file of powers of attorney, and a notary
seal. Captain Miller meets Senior Airman Flores, the mobility line
paralegal, at the processing line at 0445. Senior Airman Winston
processes through the deployment line at 6 *a.m.,* and when she arrives
at Captain Miller's station, she says simply, "Ma'am, I am afraid I do
need a will. I thought I had one at home with guardian provisions for my
child but I cannot find it."

Captain Miller sets out to create what may be one of the most widely
used and convoluted documents used on the mobility line---the
"fill-in-the-blank" will. The scope of this article includes an
assessment of the fill-in-the-blank will and its statutory validity,
commentary on the difficulty of probating a holographic will in some
jurisdictions, comments concerning the disposition of an original will,
and a discussion of the considerations involved with executing a will
during an exercise.[^4] As this article will show, treatment of
holographic wills from state to state is not uniform. Consequently, this
article will also offer potential solutions to this problem and a
recommendation concerning the future use of will drafted from the
mobility processing line.

### II. BACKGROUND OF THE DEPLOYMENT WILL

Air Force legal offices are required to assist in the preparation of
"mission related" legal documents, which includes wills and powers of
attorney for clients.[^5] To that end, wills, powers of attorney, and
living wills are the subject of many preventive law seminars and
briefings given to Air Force members. Yet, while the importance of and
the need for these documents is communicated to Air Force members, the
number of airmen who heed this advice and take steps to procure these
documents is not always clear. Sadly, a significant number of wills are
still created at a mobility processing line while a unit is poised to
leave for a contingency operation, rather than in advance, at the legal
office, where there is more time and greater resources available to do a
more complete job.

When airmen do avail themselves of these legal services, personnel in
most Air Force legal offices use a computerized will program, known as
DL Wills, to help these airmen.[^6] Computerized will programs
facilitate the interview process with clients and allow for uniformity
of document preparation.[^7] In addition, DL Wills allows the user to
select a jurisdiction of residency and provides various state law notes
that may be applicable depending on which part of the computer program
is being used. Indeed, as a deployment tool, DL Wills can and has been
downloaded to laptop computers for use during a mobility processing line
operation. In fact, the use of DL Wills on the mobility line should be
and is considered a primary method of testamentary preparation. However,
given the inevitable uncertainties of a contingency operation, such as
the lack of electric power, a non-functioning printer, or the need to
relocate at the last minute, the DL Wills program might not be a useful
tool. While some legal offices have often used fill-in-the-blank wills
as a primary testamentary method, others resort to this method only in
the event of a contingency.

**III. THE DEPLOYMENT WILL OPTIONS --**

**TOOLS OF THE TRADE**

Captain Miller has three options available to her to prepare Senior
Airman Winston's will. Captain Miller can create a DL Will, have Senior
Airman Winston complete a fill-in-the-blank will, or use a statutory
will applicable in some jurisdictions.[^8] Since Captain Miller does not
have a laptop available at the mobility processing line, she would
likely decide to use a fill-in-the-blank will form from her mobility
briefcase. However, Captain Miller's use of this fill-in-the-blank will
raises concerns as to whether Senior Airman Winston is receiving a valid
legal document. In an attempt to address these concerns, the next two
sections examine the requirements for a valid will and the appropriate
treatment of a holographic will.

### A. Requirements for a Valid Will

Under the Uniform Probate Code (U.P.C.), an individual "18 or more years
of age who is of sound mind may make a will."[^9] All wills must be in
writing, signed by the testator in the presence or "conscious
presence"[^10] of two witnesses who sign either at the time the will is
created or a short time after the will execution ceremony.[^11] States
that have enacted the U.P.C. requirements for wills have, for the most
part, followed the language, intent, and structure of the U.P.C.[^12]
Although non-U.P.C. jurisdictions vary tremendously in their
requirements for a valid will,[^13] in U.P.C jurisdictions, wills that
do not comply with the required execution provisions are treated as
valid holographic wills.[^14] Moreover, in UPC jurisdictions a will may
or may not have been witnessed, but if the document is not entirely in
the handwriting of the testator or the material provisions are not
sufficient to meet the requirements of U.P.C jurisdictions, the document
created on the mobility processing line may nevertheless be considered a
holographic will.[^15]

### B. Holographic Wills

Holographic wills are those that can be executed without witnesses
present and that are valid as long as the "material portions of the
document are in the testator's handwriting."[^16] Historically,
holographic wills have carried with them the Statute of Frauds stigma of
fraud and forgery.[^17] This thread of doubt and its concordant cautious
attitude are still reflected in some jurisdictions that make holographic
will statutes rigid in both rule and application.[^18] Non-U.P.C. states
typically follow the requirement that holographic wills must be
"entirely in the handwriting of the testator" with no witnesses
required.[^19] However, a trend toward accepting holographic wills as
valid testamentary documents free from cumbersome requirements is
emerging.[^20] In fact, a sizeable majority of states have now adopted
the U.P.C. analysis of holographic wills.[^21] The U.P.C. specifically
permits wills that are not entirely in the handwriting of the
testator.[^22] In commentary, the U.P.C. provides for wills that leave
blank spaces for a testator to fill in a named beneficiary or personal
representative.[^23] Jurisdictions that have embraced the amended U.P.C.
language have done so with interesting variety.[^24] Some states preface
the usefulness of a holographic will as a document that can be created
without the assistance of an attorney.[^25] Often the catch-all for
wills that do not meet statutory requirements, the holographic will
statute has become a sometimes unpredictable factor in the equation of
testamentary good intent.

**IV. SURVEY OF STATES**

**A. California Holographic Wills**

The acceptance of fill-in-the-blank wills under the holographic wills
statute took an interesting, and a clearly minority, turn in California
in the early 1980s. The fill-in-the-blank will, as a testamentary tool,
gained acceptance in California in the decisive case of *Estate of
Black*.[^26] That case involved a fill-in-the-blank will that the
testator had purchased commercially.[^27] In *Black,* the testator
completed three copies of a one page preprinted commercially marketed
will form that was intended to be used as a one page will.[^28] She then
went into specific handwritten detail relating to the desired
disposition of her estate.[^29]

Because there was commercially printed material on the will, the trial
court and appellate court both interpreted the document to be invalid
under the existing holographic will statute in California, which
required the will be "entirely in the handwriting of the testator."[^30]
On appeal, the California Supreme Court rejected the notion relied upon
by the lower courts that the testator's intent was important in
determining whether the testator meant to include the printed matter on
the will form.[^31] Rather, the court embraced the theory that the test
to determine the validity of a fill-in-the-blank will was whether the
testator intended the material provisions to be read as part of the
will.[^32] In what has been described as an effort by the California
Supreme Court to validate the testator's wishes,[^33] the court
liberally construed the state statute for holographic wills and admitted
the will to probate as a valid document.[^34]

Up to that time, there were generally two theories courts relied upon to
determine the validity of holographic wills, the surplusage theory and
the intent theory. The surplusage theory overlooks the printed matter
and reads only what the testator wrote, while the intent theory requires
that all the words be created by the testator or that there be clear
intent on the face of the will that demonstrates the testator's desired
intent to use a fill-in-the-blank will.[^35] Following *Black,* the
California legislature responded to what was becoming a trend in that
state favoring the surplusage theory,[^36] and amended its holographic
will statute to specifically allow for the commercially prepared form
will.[^37] Thus, under current California law, holographic wills are
valid if the signature and the material provisions of the will are in
the testator's handwriting.[^38] If, however, the document is not dated,
then proof as to the date of execution or proof of testamentary intent
may be necessary.[^39] Whether or not the document is dated,
testamentary intent is the primary consideration concerning the validity
of a holographic will.[^40] With regard to preprinted or
fill-in-the-blank will forms, the intent is the primary consideration.
To the extent the printed portions of the document are not material to
the substance of the will or essential to its validity as a testamentary
disposition, a fill-in-the-blank document will be considered a valid
holographic will.[^41] Indeed, there are four considerations when making
the determination whether a document containing printed language should
be invalidated as a holographic will: whether the printed provision is
relevant to the substance of the will, whether it is essential to the
will\'s validity, whether the testator intended to incorporate the
printed portion, and whether invalidation of the holograph would defeat
the testator\'s intent.[^42]

Although the statutory language and the case law appear to follow a
trend toward do-it-yourself wills, the California statute has not been
and likely will not be modeled in any other jurisdiction.[^43] Of
greater concern for judge advocates is the application of this provision
to preprinted wills used by the legal office. A fill-in-the-blank will
prepared by the legal office for use on the mobility line may not be
considered a commercially printed form. Though commercially printed is
not defined, it is possible the legal office form may not find
acceptance under the state statute because it is not commercially
printed. However, given the position of the California Supreme Court
concerning this issue, legal office fill-in-the-blank will forms can be
used in California provided the testamentary intent of the testator is
not otherwise obscured.

**B. Arizona Holographic Wills**

Arizona has a rich history of decisions dealing with different styles of
preprinted fill-in-the-blank wills. Earlier Arizona statutes required
that a holographic will be "entirely written and signed by the hand of
the testator."[^44] Dealing with that rule, the Arizona Court of Appeals
reviewed a series of cases prior to the enactment of the current U.P.C.
version of the holographic will statute in 1988.[^45] Specifically, on
the same day the Arizona Court of Appeals in both Division One and
Division Two[^46] addressed preprinted wills in different fact scenarios
in *Estate of Schuh*[^47] and in *In re Estate of Mulkins*.[^48] Both
cases addressed whether preprinted provisions in a fill-in-the-blank
will invalidated the document under Arizona's holographic will statute.
In short opinions, the court determined in both cases that the printed
portions of the document were not essential to understand and validate
the entire will.[^49] The courts, guided by the prevailing theories of
surplusage and intent, decided that the wills could be read under the
surplusage theory without the printed material, thereby validating both
documents.[^50]

Faced in 1973 with a new statutory provision taken directly from the
U.P.C.,[^51] Arizona addressed the issue of holographic wills again in
*Estate of Muder.*[^52] Two months before his death, Muder had
completed, on a commercially printed form, his last will and testament
in the presence of one witness.[^53] The issue was whether it was a
valid holographic will. Like California, holographic wills are valid if
the signature and the material provisions are in the handwriting of the
testator.[^54] To serve as a will, the document, even if it was a
holographic will, must demonstrate the testator's intent to dispose of
property upon his death.[^55] The court, citing language in *Black,*
determined that the words on the fill-in-the-blank will and the
handwritten provisions of the testator could be read together as a valid
document.[^56] The court concluded that the state legislature "intended
to allow printed portions of the will form to be incorporated into the
handwritten portion of the holographic will as long as the testamentary
intent of the testator is clear and the protection afforded by requiring
the material provisions be in the testator\'s handwriting is
present."[^57] As for fill-in-the-blank forms, the court stated, "\[w\]e
hold that a testator who uses a preprinted form and *in his own
handwriting* fills in the blanks by designating his beneficiaries and
apportioning his estate among them and signs it, has created a valid
holographic will."[^58]

Given *Muder* and the state's endorsement of fill-in-the-blank wills,
clients on the mobility processing line who are residents of the state
of Arizona and who have executed a fill-in-the-blank will, can do so
with confidence that the wills are valid in their home state. But,
because Arizona, unlike California, does not have a statute that
specifically mentions preprinted will forms, caution should still be
exercised if relying entirely upon the trend in Arizona toward
acceptance of fill-in-the-blank wills.[^59]

**C. New York Holographic Wills**

New York has a rather unique statutory probate scheme that appears to
carve out a special exception for military members who wish to create a
holographic will. With the exception of holographic wills, all other
wills created in New York must comply with traditional statutory
requirements concerning signatures and witnesses, along with the
requirement that the document be "in writing."[^60] To the extent a will
does not comport with these requirements, it may qualify as a
holographic will, though the application of the holographic will
provision is unusually narrow.

Specifically, the New York statute provides:

> \(b\) A nuncupative or holographic will is valid *only if* made by:
>
> \(1\) A member of the armed forces of the United States *while in
> actual military or naval service during a war, declared or undeclared,
> or other armed conflict* in which members of the armed forces are
> engaged.
>
> \(2\) A person who serves with or accompanies an armed force engaged
> in actual military or naval service during a war, declared or
> undeclared, or other armed conflict in which members of the armed
> forces are engaged.[^61]

While only military members are afforded the option of a holographic
will, in order to create a valid holographic will, the document must be
"entirely in the handwriting of the testator"[^62] and the member must
be serving in the military.[^63] Despite what appears to be a probate
provision designed to benefit the military member, these specific
aspects of the law may limit the usefulness of a holographic will.

The statute does not define the word "entirely," and it is not clear
from the statute whether including portions of the document that are not
in the testator's handwriting would invalidate the will. A strict
reading of the statutory language suggests that such provisions would be
fatal. There is little case law interpreting this point, though in one
case, a holographic will was admitted to probate even though a portion
of the will was type written.[^64] The court stated that although the
typewritten will was not strictly holographic, "the law applicable to
holographic wills was applicable to testator\'s typewritten will, since
it was executed by testator\'s own hand and control."[^65] The court
continued, "\[i\]n the case of a holographic will the dangers of fraud
and imposition or of undue influence are greatly diminished and it is
unnecessary to examine as closely the terms and manner of
publication."[^66] Without more guidance, however, it is difficult to
predict whether this more liberal interpretation would prevail over a
strict reading of the statute.

In addition to what appear to be strict format requirements, courts have
taken a narrow view of what constitutes military service. In *In re Will
of Poppe*,[^67] the testator created a paper writing that was offered
for probate.[^68] The court examined the will, which had one witness
signature and no attestation clause, under the holographic will
provision.[^69] Finding that the holographic will statute did not apply,
the court noted that "the privilege of informal testation" is for
military members only.[^70] The court, finding no proof that the
decedent had any military status, denied the will as a holographic
document and refused to admit it to probate. A more severe exclusionary
view was applied in *In re Will of Dumont.*[^71] Mr. Dumont enlisted in
the military and was sent to France in 1918. A few months later, he
returned to the United States and was stationed at Ellis Island, New
York. While in New York, Mr. Dumont announced at a formal dinner event
that he wanted everything he owned to go to his fiancée, whom he later
married.[^72] Mr. Dumont was then assigned to Arizona and later
honorably discharged from the military after he became ill from
tuberculosis. Mr. Dumont died in California in 1920. Remarkably, the
court determined that Mr. Dumont's statements were not valid as a
nuncupative will because, at the time Mr. Dumont attended the party and
made the statements, he was not in "actual military service."[^73]
Noting that he was not under immediate orders to go some place for the
purpose of war, the court stated that the statute extended a special
privilege that could not be expanded beyond its true meaning.[^74] The
court did acknowledge that being on actual military service has been
interpreted to mean being on an expedition.[^75] Use of the term
"expedition" suggests a military operation other than actual warfare. In
that regard one court stated,

> \[t\]he necessity for this exception in favor of the soldier
> respecting wills is found in the stress, peril, urgency, and travail
> attending his being in actual warfare, his actual going into war or
> \'on an expedition,\' his being in military service in the enemy\'s
> country, his being on the eve of embarkation and the like, and the
> lack of reasonable time, opportunity, and means for putting the will
> into form and in writing.[^76]

In today's expeditionary Air Force, any member being deployed for war or
any operation other than war will likely enjoy the benefit of this
provision, though judge advocates must be careful dispensing advice
concerning the holographic will provision given the lack of statutory
and judicial guidance.

### D. Maryland Holographic Will

Similar to New York, Maryland allows for holographic wills signed by
military members, though the Maryland statute is more narrowly written.
The Maryland provision explains holographic wills as follows:

> *(a) Signed by person in armed services* -- A will entirely in the
> handwriting of a testator who is serving in the armed forces of the
> United States is a valid holographic will if signed by the testator
> *outside of a state of the United States*, *the District of Columbia*,
> or a territory of the United States even if there are no attesting
> witnesses.[^77]

This narrow construction can present problems for military members from
Maryland. First, since the Maryland statute addresses only those
holographic wills made outside of the United States, the District of
Columbia, or a territory of the United States,[^78] a will created in
Colorado on a mobility line, for example, is not likely to meet the
requirements of this statute. As a result, caution should be exercised
when preparing a holographic will for a Maryland resident on a mobility
processing line within the geographical boundaries of the United States.
Outside of those boundaries, the holographic will would need to
specifically delineate where the military member was at the time the
document was drafted and signed in order to meet the statutory mandate.
Though, it is difficult to imagine a perfect scenario in which a
military member, in his or her free time while engaged in an operation
overseas, would be able to correctly create a document fulfilling the
requirements of this statute.

In this regard, whether on the mobility line at a base in the United
States or overseas, the use of fill-in-the-blank wills for Maryland
residents raises a second concern. Because the statute very precisely
requires the will be "entirely in the handwriting of the testator,"[^79]
this would appear to preclude the use of a fill-in-the-blank will. As
with the New York holographic will provision, this issue has not been
clearly resolved.

Taken to its logical conclusion, this well-intentioned statute is
fraught with inherent difficulties that limit its usefulness on a
practical level. Preparing a fill-in-the-blank will for a client under
this statute may either fail at its inception because it is not in the
testator's handwriting or fail in the geographic location requirement.
At a minimum, details about this statute should be relayed to clients so
they can determine if the benefit of creating a holographic will under
Maryland's statute outweighs the risk.

### E. Maryland and New York Statutory Revocation Clauses

Both Maryland and New York have a unique statutory provision that
affects the durability of a fill-in-the-blank will. These states have
statutory provisions that actually invalidate a will created by a
military member one year after separation from the military. The New
York statute is as follows:

> \(b\) A will authorized by this section becomes *invalid*:
>
> \(1\) If made by a member of the armed forces, upon the expiration of
> *one year following his discharge* from the armed forces.
>
> \(2\) If made by a person who serves with or accompanies an armed
> force engaged in actual military or naval service, upon the
> *expiration of one year* from the time he has ceased serving with or
> accompanying such armed force.
>
> \(3\) If made by a mariner while at sea, upon the expiration of *three
> years* from the time such will was made.[^80]

This statutory language is nearly identical to the Maryland provision,
which states that "\[a\] holographic will is void one year after the
discharge of the testator from the armed services unless the testator
has died prior to the expiration of the year or does not then possess
testamentary capacity."[^81] With regard to testamentary capacity, New
York has a similar provision which states that if the person does not
have testamentary capacity at the end of the one year period then the
validity of the will continues until such time as such this capacity is
regained.[^82]

Typically, a will is valid until revoked by some act on the part of
testator referred to in the U.P.C. as "burning, tearing, canceling,
obliterating, or destroying the will or any part of it."[^83] Yet, in
New York and Maryland, a client could create a valid handwritten
holographic will and one year after leaving the military and without
regard to the intent of the client, it would become an invalid document
by operation of law. In addition, the provisions in New York go even
further, allowing a client to revoke a holographic will with another
holographic will or an oral declaration of intent witnessed by two
individuals.[^84] By contrast, Maryland's statute seems to limit the
ways a will can be revoked by setting forth the way in which a will can
be revoked.[^85]

Clients who are residents of either New York or Maryland who wish to
complete a holographic will should do so entirely in their own
handwriting and probably should not use a fill-in-the-blank will. In
addition, a military member executing a will while on the mobility line
should be advised about the holographic will and its application in both
Maryland and New York, including the effects of statutory invalidation
within one year of discharge. Such advice is in keeping with the general
rule explained to most clients in legal assistance, that estate planning
needs should be reevaluated annually, if not more often. The provisions
in both Maryland and New York are proof positive of the need to evaluate
judge advocate interactions with clients on the mobility line. These
statutes highlight the need for aggressive preventive law interaction to
identify and serve these clients well before they are selected for a
deployment.

### V. STATUTORY WILLS

A handful of states have enacted what is known as a *statutory
will*,[^86] as means to accommodate a growing number of people in the
United States who fail to execute a will.[^87] By enacting statutes that
provide for fill-in-the-blank wills, states are relying upon a
legislative attempt to bridge the gap between the sophisticated estate
planner and the person who dies intestate. Statutory wills are not new
to the world of jurisprudence. They were used in the 1920s in England
and enacted in the United States in 1984 by the National Conference of
Commissioners on Uniform State Laws.[^88] To date, only two states
follow the Uniform Statutory Wills Act,[^89] which was patterned after
the Uniform Probate Code in language and intent, and they are New
Mexico[^90] and Massachusetts.[^91] Statutory will provisions that do
not use the format of the Uniform Statutory Wills Act were first enacted
in California in 1982.[^92] Maine,[^93] Wisconsin,[^94] and
Massachusetts[^95] all followed California's lead, enacting statutory
will legislation in the 1980s. Although the original law was
repealed,[^96] Michigan will retain its statutory will, with new
statutory provisions effective April 1, 2000.[^97]

Statutory wills were designed with the express goal of providing a
reasonable alternative to a large segment of the population that is
either distrustful of testamentary tools or of the legal
profession.[^98] The positive attributes of the statutory
fill-in-the-blank will are the relative ease with which a person can
complete the document and the ability to consider, in the comfort of
one's own home, the division of personal items.[^99] The statutory will
is viewed, not as a substitute for legal assistance with an attorney,
but as an intestacy alternative for many individuals who would not
otherwise create a will.[^100]

All statutory wills share the same general concepts and provide
testators with a cautionary introduction directing them to a lawyer if
they lack understanding.[^101] Pursuant to the general legislative
scheme, statutory wills provide blank space for testators to choose, by
name, individuals to act as the personal representatives and guardians
for their children. Generally, statutory wills also allow testators to
select beneficiaries for the disposition of the residuary estate and
personal effects. However, the Massachusetts and New Mexico statutory
will provisions automatically leave the surviving spouse with children
either a statutory dollar amount or one half the balance of the
statutory will estate, whichever is greater.[^102]

In the context of a mobility line, the statutory will is simply a state
sanctioned fill-in-the-blank will. Although similar to the preprinted
wills permissible in some jurisdictions, the statutory will has both the
statutory authority and the legal backing of state probate judges and
attorneys. Normally, the statutory will can be read and completed with
ample time to consider available options and provisions, including
warnings and caveats.[^103] However, a client on the mobility line has
little time to read an entire statutory will with explanatory notes. A
member would be faced with choices that must be made and details that
must be completed in order to validate and execute the will. To assume
that a deploying member would be able to fully grasp all the issues that
arise when completing a will in a short amount of time under an
impending deployment is, perhaps, not realistic. This makes the role of
the legal assistance attorney critical. She must be able to explain
quickly and clearly all the alternatives available and all of the
pitfalls.

In that regard, the statutory will itself encourages individuals
completing the document to ask an attorney any questions that they may
have.[^104] Additionally, individuals completing the will are encouraged
to question information contained on the document that is unclear.[^105]
If a member on the mobility line questions a statutory provision or the
effect of a certain disposition, the particular military attorney must
understand the implications of a statutory will in all of the applicable
jurisdictions. Completing a statutory will with the assistance of an
attorney would be, in many respects, analogous to assisting clients who
complete state-specific divorce or separation paperwork. Unlike DL
Wills,[^106] the statutory will does not prompt an attorney with
state-specific information and cautionary advice. An attorney on a
mobility line who opts to utilize a statutory will must be familiar with
that particular jurisdiction's statutory will, updating any enacted
changes immediately.

### VI. PROBATE OF HOLOGRAPHIC WILLS

As though the difficulties of execution and validation of holographic
wills were not sufficiently problematic for the mobility line judge
advocate, specific concerns regarding probate warrant particular
attention. Arkansas,[^107] Tennessee[^108] and North Carolina[^109] have
statutory provisions that may affect the probate of holographic wills
made by clients on the mobility line.

### A. Probate of a Holographic Will in Arkansas

Arkansas has an intricate set of provisions governing the probate of a
holographic will. To probate a holographic will in Arkansas, "\[t\]he
entire body of the will and the signature shall be written in the proper
handwriting of the testator."[^110] Whether or not witnessed at the time
of execution, a holographic will requires the testimony of three
credible disinterested witnesses to verify that the handwriting and
signature of the testator are indeed his.[^111] Arkansas specifically
requires that,

> the entire body of the will and the signature shall be written in the
> proper handwriting of the testator, the will may be established by the
> evidence of at least three (3) credible disinterested witnesses to the
> handwriting and signature of the testator, notwithstanding there may
> be no attesting witnesses to the will.[^112]

The same requirement to prove authenticity is also found in the
statutory provision for "proof of will." That provision states that
"\[a\] holographic will shall be proved by the testimony of at least
three (3) credible disinterested witnesses proving the handwriting and
signature and such other facts and circumstances as would be sufficient
to prove a controverted issue in equity."[^113] The Arkansas provision
focuses on two specific issues concerning the probate of a holographic
will: credibility and disinterest.

First, credibility is usually defined as "worthy of belief," but with
regard to Arkansas probate law, it means something more.[^114] In
*Sanders v. Abernathy*,[^115] the Arkansas Supreme Court addressed the
issue of whether a witness was credible for purposes of probating a
will. Adopting the language of a prior case and the analogous
requirement under change of venue statutes, the court said, "\[a\]
credible person is one who has the capacity to testify on a given
subject and is worthy of belief; and one who lacks knowledge on the
subject under investigation is not a credible person to be accepted as
worthy of belief on that particular inquiry."[^116] Credibility then
requires not only that the witnesses comes across as believable and
trustworthy, but that the witness actually has the knowledge to answer
inquiries about the testator's handwriting.

A second requirement concerns disinterest. Disinterest is defined as
"\[o\]ne who has no interest in the cause or matter in issue, and who is
lawfully competent to testify."[^117] In *Barnard v. First Methodist
Church of Mena*,[^118] the Arkansas Supreme Court reviewed a holographic
will that was witnessed by church members, one of whom was an
attorney.[^119] The court held that the three witnesses who testified
from the church demonstrated that they were disinterested in the outcome
of the case.[^120] Although it was alleged that the witnesses were
interested because they were members of the church which stood to gain
from the will, the court felt that, \"\[a\]ll such witnesses were mature
and no gain would inure to them, individually, under the will \[and that
t\]hey were competent witnesses."[^121]

The importance of these requirements was emphasized in the case *In re
Estate of Sharp*,[^122] which dealt with proof of an ordinary will. In
that case, the court held that only one of the three witnesses who
testified met the statutory requirements of disinterest and
credibility.[^123] According to the court, one of the disqualified
witnesses stood to benefit under the will, and the other "did not
recognize the signature of the purported testator and had no
recollection concerning the manner of its signing."[^124] With only one
of the three witnesses meeting the statutory requirement, the will could
not be probated.[^125]

Applying the law in Arkansas to the situation on a mobility line, a
fill-in-the-blank will created by a testator will not likely make it
past the initial requirement of "entirely in the handwriting of the
testator."[^126] Assuming a fill-in-the-blank will or even a holographic
will meeting the Arkansas statutory threshold if introduced at probate,
witnesses become an immediate concern. Locating witnesses who are
disinterested in the outcome of the case, familiar with the testator's
handwriting and who are credible often eliminates family members.
However, coworkers, first sergeants, or a landlord may meet the Arkansas
threshold of disinterest and credibility assuming they could testify
regarding the testator's handwriting and signature. Judge advocates who
offer a holographic will to a military member from Arkansas are
potentially binding the member and the member's family for years to
come. Given the short time available in predeployment processing,
providing Arkansas residents with a holographic will must be done with
caution.

### B. Probate in North Carolina -- The "Valuable Papers" Provision

North Carolina is another state with a rigid holographic will
requirement, but additional concerns accompany probate of such wills.
Like Arkansas, North Carolina has established that a valid holographic
will is one that is entirely in the testator's handwriting, subscribed
by the testator.[^127] However, North Carolina does allow for wills that
have some printed material on the face of the document, as long as the
meaning of the words written by the testator is clear[^128] and the
printed words are not necessary to give meaning to the written words of
the testator.[^129]

Two distinct requirements for probating a holographic will deserve
comment. First, three competent witnesses must testify that the will is
in the handwriting of the testator and that it was signed by the
testator.[^130] Unlike Arkansas, the requirements for competency are not
stringent. Indeed, witnesses are required only to have some degree of
familiarity with the handwriting and signature of the testator, but
disinterest and credibility are not specifically required.[^131] Second,
the holographic will must have been found among the testator's "valuable
papers or effects."[^132] In that regard, the statute also gives effect
to a holographic will found in a safety deposit box or safe storage
site.[^133] This requirement is satisfied if the purported holographic
will is found among the testators valuable papers or effects, in a safe
deposit box, in a safe place selected by the testator or under their
authority, or in the possession of a person who received the document
from or on the authority of the testator.[^134] The statutory purpose
for this location requirement was to provide some indication whether the
testator wanted the purported document to be considered the last will
and testament.[^135] Serving as evidence of intent, the location among
other valuable papers demonstrates the testator's evaluation of the
importance of the document.[^136] To the extent, however, there is
evidence contradicting the testators estimation of the importance of the
document, the location of the document will not matter. The Supreme
Court of North Carolina acknowledged as much when it stated that a
document "placed among the author\'s valuable papers without her
knowledge and consent, it would of course have no validity as a will
even though found among the papers after the author\'s death."[^137]
Nevertheless, for residents of North Carolina, the location of a
document purporting to be a holographic will remains an important
indication of the testator's intent. In fact, North Carolina's statutory
history is traced to 1784, and it remains the only jurisdiction with a
valuable papers requirement.[^138]

As a practical matter, the North Carolina provision does not work well
in a mobility line setting. Coupled with the requirement that a
holographic will be entirely in the handwriting of the testator, the
location of the holographic will at the death of the testator also bears
on the final outcome in probate court. The North Carolina statute is a
yet another example of the varying considerations and vast national
inconsistency that must be analyzed and explained to the client before
creating a will on the mobility line.

Another aspect of the North Carolina probate legislation that has a
unique affect upon military members concerns the need for an oath. In
addition to the conditions for probating a holographic will, wills of
members of the armed forces must satisfy another requirement that the
documents are "admitted to probate . . . upon the oath of *at least*
*three credible* witnesses."[^139] This statute does not require the
oath merely for holographic wills, but appears to apply to any type of
validly executed will.[^140] The statute does not require the witnesses
to have been present at the time the will was executed, nor is it
concerned with the content of the document.[^141] This military
provision requires only that the witnesses affirm that the signature on
the document is actually that of the individual whose will is now
offered for probate.[^142] Interestingly, these witnesses are
specifically required by the language of the statue to be "credible,"
though the term is not defined.[^143] Whether this military provision
requires more or different credibility than is expected of an ordinary
witness is not addressed in the statute or in case law.

The reason for such a requirement for military members is not
immediately clear. Initially, the idea of distrust might appear to be
the motivation for a continuing statutory requirement that members of
the armed forces face a greater burden when their wills are probated. It
may be that in addition to having the other witnesses required by
various probate provisions, witnesses for a military member must carry a
greater measure of credibility. A better explanation may be that the
statute affords members of the military more flexibility in the probate
of their wills. Rather than relying on testimony by witnesses who are
merely competent and who must testify as to the handwriting on the
document, military members need only produce three believable witness to
attest to the authenticity of the signature. To be sure, there have been
no cases that have analyzed and ruled upon the probate of a military
will, much less the purpose or goals of the military provision. While
the impact on a military member's will is, at best, unknown, the need to
advise residents of North Carolina of this provision has not diminished.

### C. Probate of Holographic Wills in Tennessee

Tennessee is another state that deserves mention for its statutory
provisions for probate of military members' will. At one time, residents
of Tennessee faced strict requirements for the probate of a holographic
will.[^144] That is no longer the case. A holographic will requires that
the signature and "material portions" of the will be in the handwriting
of the testator.[^145] In this regard, the Tennessee holographic will
statute seems to be similar to U.P.C. requirements, allowing a will to
be admitted to probate even though portions of the will are not in the
testator's handwriting.[^146] This would be consistent with the
statutory purpose of the holographic will provision. Noting that the
primary concern is the intent of the testator, one court explained that
"testamentary intent must accompany the performance of the statutory
requirement."[^147] In order to help solidify the question of intent,
Tennessee also requires the testimony of two witnesses to confirm that
the handwriting that makes up the signature and material provisions is
that of the testator.[^148] While there is no requirement of
disinterest, credibility, or competency for witness testimony, the
evidence is evaluated using the appropriate rules of evidence and
procedure.[^149] Like other holographic will statutes, the witnesses did
not have to actually witness the will.[^150]

In what appears to be an alternative rather than a substitute, Tennessee
allows for wills of military members to be probated under a special
statutory provision. Operating as a military probate option, the statute
is curiously vacant of references, definitions, or case law
interpretation. To help understand the military probate protection in
Tennessee, both the state statute for holographic wills and the state
statute for the execution of a will are illustrative. Generally, for any
will other than those wills that are nuncupative and holographic, the
Tennessee statute requires that the testator actually state that the
document is his will, that he sign or acknowledge his signature in the
presence of at least two witnesses, and that those witnesses sign the
document in the testator's presence.[^151] In the military probate
provision,[^152] there are two available options[^153] for probate.

Under the first option, instead of two witnesses being required to
either witness the will or later acknowledge the signature, only one
witness is required.[^154] The witness needed for purposes of probating
a military will is defined as a "colonel, lieutenant colonel, major or
commanding officer of the regiment, or captain or commandant of the
vessel."[^155] Interestingly, there is no requirement that the officer
acting in the role analogous to a witness actually see the member sign
the will.[^156] Instead, the officer is only required to state that the
"the testator acknowledged, or that the subscribing witnesses proved,
the will before him."[^157] Essentially, the first military probate
option allows for a commander to act as a witness to witnesses of a will
for purposes of introducing the military member's will to probate.[^158]
In order for this statute to apply, a commander must be able to certify
that the member executed a will, either through information from the
member or the two witnesses. It is hard to imagine a commander
remembering the specifics of who executed a will or who acted as
witnesses to a will, especially given the fact that probate is often
many years after the will is finalized. It is also noteworthy that the
first Tennessee probate option has no language limiting its
applicability to times of deployment and seems to imply broad
application be indicating that it applies to "\[a\]ny last will of any
person in the military or naval service."[^159] Also, under this first
military probate option in Tennessee, the testator's heirs are permitted
to contest the will.[^160]

The second military probate option in Tennessee applies to "\[t\]he will
of any person serving in the armed forces of the United States or any
auxiliary thereto and executed while serving therein."[^161] While the
second option does not reference the first military probate option at
all, it seems to intend that witnesses are the first course of action in
probate and, "\[w\]here it *first* be shown that proof of due execution
of such will may not be had of the subscribing witnesses thereto, if
any, due the inability to locate them, their death or the unavailability
of their testimony."[^162] It is not clear *which* witnesses or *who* is
supposed to be identified as witnesses, but the statute seems to imply
that the will failed the state will execution requirement[^163] and the
member's will is being probated under this second option. The second
option requires no witnesses at all, requiring only that the signature
on the will is genuine.[^164]

The Tennessee Court of Appeals addressed the question of whether the
testator's signature on a holographic will was genuine in the case of
*In re Estate of Jones*.[^165] The testatrix in that case created a
holographic will in 1932 which was valid under the then-existing state
holographic wills statute,[^166] which is identical to the current
Tennessee holographic wills statute.[^167] Even though neither the
statute in effect at the time of the case nor the current statute
required it, the probate court reviewed the will for a genuine
signature.[^168] The first holographic will was created by the testator
in 1932 and was signed, "Maude Hall Jones." A second holographic will,
written sometime in 1952, was signed only with the name "Maude."[^169]
The probate court denied probate of the second holographic will because
the testator had not signed the will with her full name.[^170]
Disagreeing with the lower court, the Tennessee Court of Appeals decided
that the signature of "Maude" on the 1952 holographic will was a
sufficient genuine signature for purposes of probate.[^171] In remanding
the case, the court decided that the signature on a will need only be
"valid."[^172]

The decision in *In re Estate of Jones,* may have an effect on option
two of the military probate provision requiring proof of
genuineness.[^173] Rather than simply requiring a signature, like the
holographic will statute in Tennessee, the military probate provision in
option two goes one step further and requires that the signature be
genuine. Given the ruling in *In re Estate of Jones*, it may be that the
requirement in option two of the military probate provision would be
satisfied with a signature that is valid. Whether the holographic will
would require a genuine signature as the statute outlines or merely a
valid signature based on the guidance in *In re Estate of Jones* is not
certain. The statute for military probate most likely uses the term
genuine for a reason, though it is unclear how Tennessee courts would
evaluate this requirement.

The second option sets a limit on the introduction of a will to probate
"\[m\]ore than ten years from the date of the declaration by the
president of the United States or a resolution of Congress declaring the
end of the hostilities during which such will was executed."[^174] This
provision is the first mention in the statute of hostilities, and no
cases to date have interpreted this statute. Moreover, it is not clear
whether the language about hostilities was only intended to apply under
the second option of the statute or whether the entire statute was
designed for times of hostilities. If the language about hostilities is
intended only to apply to the second probate option, military members
are offered two distinct methods for probating their wills in Tennessee,
one applicable in times of hostilities and one applicable regardless of
the existence of a conflict.

Taken as a whole, Tennessee's military probate provision is valuable to
military members in two ways. First, under option one or option two,
military members are afforded relaxed witness requirements for purposes
of probate. Second, if no witnesses are available at all, proof of the
genuineness of the signature of the testator is sufficient. Yet, what
appears to be favorable about the statute is in some ways disconcerting.
It is unclear in the statute whether option one and option two are to be
read together or separately. To that end, it is uncertain whether option
two is available only after the requirements of option one fail to be
met. In addition, it is unclear whether only option two is intended to
be applied during a time of hostility or whether the whole statute is
applicable to hostile military service. Last, the statute does not
delineate whether or why a will contest is applicable only under option
one and not option two.

[]{.mark}

### VII. ADDITIONAL DEPLOYMENT CONCERNS

Returning to the original hypothetical, Captain Miller has rallied a
number of witnesses and executed a will for Senior Airman Winston. With
a completed will in her hand, she is not quite sure what to do next.
Should she return the will to Senior Airman Winston who is about to step
on a plane? Perhaps she should send it to Senior Airman Winston's home
or call her first sergeant to pick it up. This issue deserves to be
addressed.

### A. Disposition of the Original Will

On the mobility processing line, a judge advocate is surrounded by
questions from military members with limited time and numerous worries.
The concern about what to do with an original will is often raised. Many
jurisdictions allow for the registration of an original will with the
clerk of court.[^175] If deposited with the court, the will is generally
maintained in a confidential manner, sealed until the testator's
death.[^176] Depositing the will with the clerk of court may appear to
be a safe storage place for an original will. Unfortunately, in at least
one jurisdiction, both staffing and space considerations have resulted
in a decline in this statutory offering.[^177] This can be compounded by
the fact that the testator may be executing a will in a jurisdiction
different from his legal residence. Thus, the judge advocate facing a
decision about treatment of the original will should not advise clients
that storage with the county or local clerk is assured.

When determining the best way to maintain the will, it is important to
consider what should be done with the document after the testator dies.
The U.P.C. provision, like that of many jurisdictions, provides answers
to that question. Under the U.P.C., "\[a\]fter the death of the testator
and on request of an interested person, a person having custody of a
will of the testator shall deliver it with reasonable promptness to a
person able to secure its probate and if none is known, to an
appropriate court."[^178] Additionally, a person who does not deliver a
will upon the death of a testator, "is liable to any person aggrieved
for any damages that may be sustained by the failure."[^179] Disposing
of the original document in a manner both consistent with the testator's
wishes and the law mandates appropriate consideration of disposition of
an original will before the time of death.

One option for safekeeping of the original will is to have the member
use a preprinted memorandum cover letter authorizing the original will
be sent to a family member or agent of the testator's choosing. This
method has been utilized in the Army,[^180] with members sending their
original wills home with explanation letters to family members. The
benefit of this option is that the testator is able to decide, in
advance, who he or she wants to receive the original will. The will, as
a precautionary measure to enhance privacy, can be enclosed in a sealed
envelope within the envelope that is used to mail the will. Also, this
option ends the judge advocate's responsibility to safeguard the
original will upon mailing.

Another option is sending the original will back to the unit with the
first sergeant or command staff. This option requires, at a minimum,
coordination with the unit to ensure they have a secure place within the
command section to store the document. Members should be told, in
advance, where the will is stored so that when they return from their
deployments, they can retrieve the original document. However, the
threat of liability and the requirement that the original will be
deposited with the court at the time of the testator's death would not
be obviated by storage within the command section. To the contrary, the
legal office staff may incur an additional burden to ensure that
commanders and first sergeants understand their legal obligation and
duty in this regard.

If a member is executing a holographic will on the deployment line, it
is essential that this document be replaced upon the member's return. To
ensure this is accomplished, members must know where their original will
is located. Members who return from a deployment should complete two
tasks: execute a new, non-fill-in-the-blank will and destroy, upon the
execution of a valid will, the deployment will bearing their signature.
The only sure course to avoid having a probate court grapple over which
document was intended to be the final will is to educate members on the
availability of legal assistance, and once a new will is executed, the
appropriate methods of revocation.

### B. The Exercise Will

To ensure preparedness and mission readiness, installations routinely
conduct exercises on the mobility line. At the time of an exercise,
members are whisked through the stops on the mobility line and asked if
they need to complete a litany of documents, to include a will. At this
time, for purposes of training, many legal offices prepare a document
for an individual using either accurately obtained client information or
false details merely given to complete a will. Either way, a judge
advocate should use the opportunity to ensure that participating members
return to the legal office if they do not actually have valid wills.

An exercise can become a setting for a disaster with regard to will
preparation. Often, military members are given a card with instructions
on how to act and what to say when they get to a particular stop on the
line. For example, some members are told to act as though they are
conscientious objectors and others are told to pretend to be opposed to
Anthrax vaccine. The goal of these role-playing scenarios is to ensure
staff at each stop can handle the usual and sometimes unusual requests
of military members deploying to some distant location. A military
member may be given a card and told to ask for a will or may be
instructed to pretend to request a general power of attorney. The
possibility of a mistake can not be overlooked or ignored. A member
could potentially leave the exercise with a will that is or, more
likely, may be construed to be valid and, more importantly, revokes a
previous valid will. The variations are numerous, but if the computer
program DL Wills or a fill-in-the-blank will is used during an exercise,
for example, it is important to remember that the words, "It is my
express intent to revoke all previous wills and codicils I may have
created" often appear as introductory words to the will. A family of a
testator who dies with a will created on the exercise mobility line
would accidentally be left to contest the validity of that will or to
prove that the testator's intent was not to create a final will.

There may also be instances where the actor in a mobility line exercise
scenario does not have a will and suggests that creating one would
benefit the requirements of the exercise. In addition, some legal
offices also use the mobility line as an opportunity to evaluate units
concerning the need for legal documents among its members. Clearly, an
office policy must be established to evaluate the balance between
assisting a small number of clients on the exercise mobility line and
the possibility an unintended will might be executed during this time.
In order to avoid such problems, exercise wills should be labeled,
"EXERCISE. NOT INTENDED TO CREATE A VALID, BINDING LEGAL DOCUMENT." This
phrase should appear on the face of each page of the will. At the
conclusion of the exercise, members should again be reminded that the
document is not a binding will. They should also be advised to seek
legal assistance from a judge advocate to ask any questions that may
have arisen during the preparation of a will and to give the attorney an
opportunity to explain the provisions and the options available.

### VIII. CONCLUSION

> Where a person contemplates making a will he should appreciate its
> importance as an instrument. He should remember that it is to
> constitute the final expression of his wishes concerning his property
> and such other matters as he may choose to mention therein. It is to
> dispose of property acquired in a lifetime. The future happiness and
> welfare of the persons most dear to him may depend upon its terms.
> Whether viewed from a property or family standpoint, it is often the
> most important document a person, even of small means, is ever called
> upon to prepare. In short, a will may be a man's monument or his
> folly.[^181]

The law concerning fill-in-the-blank wills---and for that matter, wills
in general---can be confusing, and for a mobility line judge advocate,
sorting through that legal quagmire is not an easy task. However, two
approaches to this problem may be helpful. First, preventive law must
remain a focus for legal offices in the Air Force.[^182] Traditionally,
legal offices have published articles in the base newspaper or base
bulletin about the importance of a will. These methods reach Air Force
members, grab their attention, and should be continued. Wills can be
mentioned at the introduction to a briefing for first sergeants and
commanders on military justice, to newcomers at a base information fair,
to claimants attending a claims briefing, or to attendees at a required
Law of Armed Conflict briefing. For the message to be sent and, most
importantly, heard, a legal office team approach is necessary.

Second, the Air Force must decide to permit or prohibit
fill-in-the-blank wills on the mobility line. If state statutes cannot
provide a uniform answer to fill-in-the-blank wills, the Air Force must
provide a solution.[^183] If the Air Force determines fill-in-the-blank
wills are permitted on a mobility line, this would require, at a
minimum, training for legal assistance attorneys on the varying state
laws with updates regularly distributed. Additionally, and perhaps as a
temporary substitute for formal training, a frequently updated handout
or web site with quick state law references must become part of the
deployment line kit.

As a recommended course of action, the Air Force could require a
computer generated will on the mobility line. Not only is the computer
generated will quick and accurate, it is consistent and state sensitive.
Given the varying requirements for holographic wills, the limited
application of statutory wills, and the added pressure of probate
precautions, using a computer program to draft wills is the safest and
most reliable approach. For those offices not currently using computers
on the deployment line or when a back-up method is required, the only
viable alternative, given stringent state law variations, is a will
written entirely in the handwriting of the testator.[^184]

A fill-in-the-blank will is a document without uniform acceptance.
States that follow the U.P.C., like Arizona, provide guidance and
continuity across state lines. States that have their own peculiar
requirements, however, make using a mobility line will a dangerous
prospect. Without uniformity and guidance, Senior Airman Winston's will
may or may not be sufficient to achieve her intended goals. The judge
advocate on the mobility line simply does not have the time or resources
to prescribe different courses of conduct for each client.

Wills are heralded by the Air Force as the most important document
created for a client.[^185] However, most guidance addresses how to
execute a will in the legal office and the care and preparation that
must be afforded a client. Guidance must be issued for mobility line
judge advocates who are often alone on the line without the support or
resources found in a legal office, facing a line of potential clients,
each from a different state, and each requesting a will. With a sound
policy and reliable guidance, judge advocates throughout the Air Force
can provide complete and accurate legal advice so that deploying Air
Force member's can focus on their duties and the mission.

[^1]: ^\*^ *Captain Bruno (B.A., Northern Arizona University; J.D.,
    Drake University) is an Assistant Staff Judge Advocate at Peterson
    Air Force Base, Colorado. She is a member of the State Bar of
    Arizona. She is a 1999 recipient of the American Bar Association
    Standing Committee on Legal Assistance for Military Personnel Legal
    Assistance Distinguished Service Award.*

[^2]: [Modern Probate of Wills]{.smallcaps} 503-04 (Fred B. Rothman
    1994) (1846).

[^3]: References made to the 21st Space Wing or its units are used as
    examples throughout this article. The individuals named in this
    article are fictitious. Any similarity to actual persons, living or
    dead, is unintentional and purely coincidental.

[^4]: A number of states were selected for this article for distinct
    reasons. To represent the creation of a will, California is featured
    as the leading state for preprinted fill-in-the-blank wills, while
    Arizona is analyzed because its legislation differs from the
    California law. Both Arizona and California were selected as states
    representative of the Uniform Probate Code. To represent the unique
    military aspect attributable to holographic wills and their
    revocation, Maryland and New York were selected. Statutory wills are
    available in a select number of states based on the now-defunct
    Uniform Statutory Wills Act. The two states represented that
    continue to follow the old Uniform Statutory Wills Act are New
    Mexico and Massachusetts. The four states of Maine, Michigan,
    California and Wisconsin have statutory fill-in-the-blank wills that
    do not pattern the Uniform Statutory Wills Act and were selected for
    this reason. For an interesting look at probate procedures and their
    application to the military, Tennessee, Arkansas, and North Carolina
    were selected.

[^5]: Air Force Instruction 51-504, Legal Assistance, Notary, and
    Preventive Law Programs ¶ 1.3 (May 1, 1996).

[^6]: DL Wills is the common name for a will program called Drafting
    Libraries developed by Attorney's Computer Network, Inc.

[^7]: *See* Captain James J. Gildea, *Computer-Assisted Wills Program,*
    112 [Mil. L. Rev]{.smallcaps}. 227 (1986).

[^8]: *See* Gerry W. Beyer, *Statutory Fill-in Will Forms-The First
    Decade: Theoretical Constructs and Empirical Findings,* 72 [Or. L.
    Rev]{.smallcaps}. 769 (1993) \[hereinafter Beyer, *Theoretical
    Constructs and Empirical Findings*\].

[^9]: [Unif. Probate Code § 2-501 (1993).]{.smallcaps}

[^10]: *Id[.]{.smallcaps}* § 2-503 (a)(2).

[^11]: *Id.* § 2-503 (a)(3).

[^12]: *See, e.g.,* [Ariz. Rev. Stat. Ann]{.smallcaps}. § 14-2502 (West
    1995); *but see* [Neb. Rev. Stat]{.smallcaps}. [Ann.]{.smallcaps} §
    30-2328 (Michie 1995) ("An instrument which purports to be
    testamentary in nature but does not comply with section 30-2327 is
    valid as a holographic will, whether or not witnessed, if the
    signature, the material provisions, and an indication of the date of
    signing are in the handwriting of the testator.").

[^13]: *See, e.g.,* [N.C. Gen. Stat]{.smallcaps}. § 31-10 (1984)
    ("However, if there are not at least two other witnesses to the will
    who are disinterested, the interested witness and his spouse and
    anyone claiming under him shall take nothing under the will, and so
    far only as their interests are concerned the will is void."); *see
    also* [Ky. Rev. Stat. Ann]{.smallcaps}. § 394.040 (Michie 1984).

[^14]: *See* [Unif. probate Code]{.smallcaps} § 2-503 (b).

[^15]: On the mobility processing line, witnesses and the testator are
    not afforded the traditional attestation protections. For example,
    there is not usually time to make sure that the testator does not
    know the witnesses personally and to ensure that the witnesses are
    administered an oath. In many situations on the mobility line, the
    witnesses are those who are next in line. For a discussion on the
    protective functions of execution, see generally John H. Langbein,
    *Substantial Compliance with the Wills Act,* 88 [Harv. L.
    Rev]{.smallcaps}. 489, 491 (1975) ("While a holographic will may be
    unwitnessed, it must be 'entirely' or 'materially' in the
    handwriting of the testator, and usually be dated by him.").

[^16]: [Okla. Stat. Ann.]{.smallcaps} tit 84 § 54 (West 1990). *See
    also* [Unif. Probate Code]{.smallcaps} § 2-503 cmt.

[^17]: *See* Gulliver & Tilson, *Classification of Gratuitous
    Transfers,* 51 [Yale L.J.]{.smallcaps} 1, 14 (1941) ("A holographic
    will is as obtainable by compulsion as easily as a ransom note.").
    *See also* Langbein, *supra* note 14; R.H. Helmholz, *The Origin of
    Holographic Wills in English Law,* 15 [Legal History]{.smallcaps} 97
    (1994).

[^18]: For example, one state previously required dates and signatures
    at the bottom of the document. [Mich. Comp. Laws]{.smallcaps} §
    700.123 (1995), *repealed by* [Mich. Comp. Laws]{.smallcaps} §
    700.8102 (effective Apr. 1, 2000).

[^19]: *See, e.g[., ]{.smallcaps}*[Nev. Rev. Stat. Ann]{.smallcaps}. §
    133.090 (Michie 1993) ("A holographic will is one that is entirely
    written, dated and signed by the hand of the testator himself. It is
    subject to no other form, and may be made in or out of this state
    and need not be witnessed.").

[^20]: *See* Kevin R. Natale, Note, *A Survey, Analysis, and Evaluation
    of Holographic Will Statutes*, 17 [Hofstra L. Rev]{.smallcaps}. 159
    (1988).

[^21]: *See generally* [Unif. probate Code]{.smallcaps} art. II, pt. 5.

[^22]: *See id*[.]{.smallcaps} § 2-503 (b).

[^23]: The Uniform Probate Code explains the requirements for a
    holographic will involving a preprinted form:

    > A valid holograph can also be executed on a printed will form if
    > the material portions of the document are handwritten. The fact,
    > for example, that the will form contains printed language such as
    > "I give, devise, and bequeath to \_\_\_\_\_" does not disqualify
    > the document as a holographic will, as long as the testator fills
    > out the remaining portion of the dispositive provision in his or
    > her own hand.

    *Id*[.]{.smallcaps} § 2-503 (b) cmt.

[^24]: *See,* *e.*g., [Ariz. Rev. Stat. Ann.]{.smallcaps} § 14-2503
    (West 1995) ("material provisions"); *see also* [Idaho
    Code]{.smallcaps} § 15-2-503 (1979) ("material provisions"); b*ut
    see* [Alaska Stat]{.smallcaps}. § 13.12.502(b) (Michie 1998)
    ("material portions").

[^25]: *See* [Idaho Code]{.smallcaps} § 15-2-503, cmt. 102 ("\[F\]or
    persons unable to obtain legal assistance, the holographic will may
    be adequate.").

[^26]: 641 P.2d 754 (Cal. 1982).

[^27]: *See id.* at 760.

[^28]: *See id.* at 755.

[^29]: *See id.*

[^30]: *Id.* *See also* C[al. Prob. Code]{.smallcaps} § 6111 cmt. 260
    (West 1990).

[^31]: Black, 641 P.2d at 759.

[^32]: *See id.* at 758.

[^33]: *See* Robert P. Kirk, Jr., Comment, *The New Holographic Will in
    California: Has it Outlived its Usefulness?*, 20 [Cal. W. L.
    Rev]{.smallcaps}. 265 (1984). Struggling to view the proffered
    holographic as valid, the court stated,

    > rejection of the instrument as a will would have the unfortunate
    > practical consequence of passing her estate through the laws of
    > intestacy to the daughter of a predeceased husband by a former
    > marriage---in fact, a stranger to her---thereby excluding those
    > whom she described in the holograph as "my very dear friends" and
    > "my adopted family" and the charity which was apparently close to
    > her heart and which she specifically wished to benefit.

    Black, 641 P.2d at 759.

[^34]: *See* Black, 641 P.2d at 762 (noting that the trend favored
    liberal construction of holographic will statutes in order to give
    effect to the testator's testamentary intent). *See also* Estate of
    Wong, 47 Cal. Rptr. 2d 707 (Cal. Ct. App. 1995).

[^35]: *See* Black, 641 P.2d at 757. *See also* Estate of Muder, 765
    P.2d 997, 999 (Az. Ct. App. 1988) (discussing surplusage theory);
    Kirk, *supra* note 32; Gail Boreman Bird, *Sleight of Handwriting:
    The Holographic Will in California,* 32 [Hastings L. J.]{.smallcaps}
    628 (1980).

[^36]: *See* Kirk, *supra* note 32.

[^37]: The California statute, in response to *Black*, was enacted
    stating, "Any statement of testamentary intent contained in a
    holographic will may be set forth either in the testator's own
    handwriting or as part of a commercially printed form will." [Cal.
    Prob. Code]{.smallcaps} § 6111(c).

[^38]: *See* [Cal. Prob. Code]{.smallcaps} § 6111(a). Witnesses to the
    signing or execution of the will are not necessary. *Id.*

[^39]: *See id.* § 6111(b).

[^40]: *See* Estate of Tillman, 288 P.2d 892 (Cal. Ct. App. 1955). The
    court stated,

    > Before an instrument may be probated as a will it must appear from
    > its terms, viewed in the light of the surrounding circumstances,
    > that it was executed with testamentary intent. The testator must
    > have intended, by the particular instrument offered for probate,
    > to make a revocable disposition of his property to take effect
    > upon his death. It bears emphasis that we are here concerned not
    > with the meaning of the instrument, but with the intention with
    > which it was executed. Regardless of the language of the allegedly
    > testamentary instrument, extrinsic evidence may be introduced to
    > show that it was not intended by the testator to be effective as a
    > will.

    *Id.* at 894 (citations omitted). *See also* Estate of Oravetz, 22
    Cal. Rptr. 624 (Cal. Ct. App. 1962); Estate of Kuttler, 325 P.2d 624
    (Cal. Ct. App. 1958) (defining *testamentary intent* as the intent
    that a particular instrument offered for probate, make a revocable
    disposition of property to take effect upon death); Estate of
    Spencer, 197 P.2d 351 (Cal. Ct. App. 1948).

[^41]: *See* Black, 641 P.2d at 755 (concluding that the printed clause
    of the commercial will form referring to a personal representative
    was \"patently irrelevant\" to the substance\--the dispositive
    provisions of her will). *See also* Estate of Southworth, 59 Cal.
    Rptr. 2d 272 (Cal. Ct. App. 1996) (concluding that printed portion
    of donor card referenced a future intention and, as a result, there
    was no testamentary intent).

[^42]: *See* Southworth, 59 Cal. Rptr. 2d at 277 (citing Black, 641 P.2d
    at 756-57).

[^43]: Telephone Interview with Lawrence W. Waggoner, Professor,
    University of Michigan School of Law (July 15, 1999).

[^44]: Estate of Muder, 765 P.2d 997, 999 (Az. Ct. App. 1988) (citing
    [Ariz. Rev. Stat. Ann.]{.smallcaps} § 14-123 (West 1956)).

[^45]: *See* [Ariz. Rev. Stat. Ann]{.smallcaps} § 14-2503 (West 1995).

[^46]: Due to geographical concerns and caseload, the Arizona Court of
    Appeals is split into these two separate units. Division One is
    located in Phoenix, Arizona, and Division Two is in Tucson, Arizona.

[^47]: 496 P.2d 598 (Az. Ct. App. 1972).

[^48]: 496 P.2d 605 (Az. Ct. App. 1972).

[^49]: *See* Schuh, 496 P.2d at 599. "When the will is read in the
    manner suggested by appellants, disregarding the printed material,
    we find that it is entirely self-sufficient and able to stand
    entirely alone without reliance upon any of the printed portion."
    *Id.* *See also* *In re* Estate of Mulkins, 496 P.2d at 607.

[^50]: *See* Schuh, 496 P.2d at 599, Mulkins, 496 P.2d at 606.

[^51]: [Ariz. Rev. Stat. Ann.]{.smallcaps} § 14-2502 (B) ("Intent that
    the document constitute the testator's will can be established by
    extrinsic evidence, including, for holographic wills under §
    14-2503, portions of the document that are not in the testator's
    handwriting.").

[^52]: 765 P.2d 997.

[^53]: *See id.* at 1001-02.

[^54]: *See* [Ariz. Rev. Stat. Ann]{.smallcaps} § 14-2503.

[^55]: *See* Muder, 765 P.2d at 999 (defining testamentary intent).

[^56]: *See id.* (citing Estate of Black, 641 P.2d 754 (Cal. 1982)).

[^57]: *Id.* at 1000.

[^58]: *Id.* Whether such an expansive approach to such statutes will
    prevail is not clear. As noted by Justice Moeller, the statute does
    not take into account these "do-it-yourself" wills, and
    incorporating preprinted language into the handwritten words of a
    testator to find a valid holographic will the majority went too far.
    *Id.* at 1003 (Moeller, J., dissenting). Justice Moeller concluded
    that the fill-in-the-blank will forms could not be valid holographic
    wills. *Id.*

[^59]: S*ee id.*

[^60]: *Id.* § 3-2.1(a)(1). Individuals must follow a number of strict
    requirements to make a valid will. For example, the testator must
    sign or acknowledge the will in the presence of two witnesses who
    must also sign the document, the signatures must be at the bottom of
    the will, and the testator must declare at the time of the signing,
    that this is his will. *Id.* A valid holographic will does not need
    to comply with these requirements. *Id.* at § 3-2.1(a).

[^61]: [N.Y. Est. Powers & Trusts]{.smallcaps}, § 3-2.2(b) (McKinney
    1998) (emphasis added).

[^62]: *Id.* § 3-2.2(a)(2).

[^63]: *Id.* § 3-2.2 (b)(1).

[^64]: *See In re* Will of Felson, 135 N.Y.S.2d 737 (N.Y. Sup. Ct.
    1954).

[^65]: *Id.* at 738.

[^66]: *Id. See also* *In re* Field's Will, 97 N.E. 881 (N.Y. 1912) (use
    of preprinted will form did not invalidate holographic will).

[^67]: 302 N.Y.S.2d 708 (N.Y. Surr. Ct. 1969).

[^68]: *See id.* at 709.

[^69]: *See id.*

[^70]: *Id.*

[^71]: 9 N.Y.2d 606 (N.Y. Surr. Ct. 1938), *aff'd,* 13 N.Y.S.2d 289
    (N.Y. App. Div. 1939), *aff'd,* 25 N.E.2d 388 (N.Y. 1940). While the
    case dealt with nuncupative wills, the requirements for such wills
    are identical in this respect to the requirement for holographic
    wills. Indeed, these requirements are found in the same legislative
    provision. *See* [N.Y. Est. Powers & Trusts]{.smallcaps}, § 3-2.2

[^72]: *See* Dumont, 9 N.Y.2d at 607-08*.*

[^73]: *Id.* at 608.

[^74]: *See id.* at 609.

[^75]: *See id.* at 608 (citations omitted).

[^76]: *In re* Zaiac's Will, 295 N.Y.S. 286, 301 (N.Y. Surr. Ct 1937)
    (citation omitted), *modified on other grounds,* 5 N.Y.S.2d 897
    (N.Y. App. Div. 1938), *modification rev'd,* 18 N.E.2d 848 (N.Y.
    1939).

[^77]: [Md. Code Ann., Est. & Trusts]{.smallcaps} § 4-103 (1991)
    (emphasis added).

[^78]: *See id.*

[^79]: *Id.*

[^80]: [N.Y. Est. powers & trusts]{.smallcaps} § 3-2.2 practice
    commentary 395 (McKinney 1998) (emphasis added). "For nuncupative
    and holographic wills under this section to be valid, the testator
    must die within a year of her discharge from the armed services."
    *Id.*

[^81]: [Md. Code Ann., Est. & Trusts § 4-103(]{.smallcaps}b).

[^82]: *See* [N.Y. Est. powers & trusts]{.smallcaps} § 3-2.2(d). Once
    testamentary capacity is regained, the will remains valid for one
    year thereafter. *Id.*

[^83]: [Unif. Probate Code §]{.smallcaps} 2-507 (a)(2) (1993).

[^84]: The New York revocation statute includes a direct reference to
    holographic and nuncupative wills made by military members.

    In addition to the methods set forth in paragraph (a), a will may be
    revoked or altered by a nuncupative or holographic declaration of
    revocation or alteration made in the circumstances prescribed in
    3-2.2 by any person therein authorized to make a nuncupative or
    holographic will. Any such nuncupative declaration of revocation or
    alteration must be clearly established by at least two witnesses;
    any such holographic declaration, by an instrument written entirely
    in the handwriting of the testator, although not executed and
    attested in accordance with the formalities prescribed by this
    article for the execution and attestation of a will.

    [N.Y. Est. Powers & Trusts § 3-4.1(]{.smallcaps}b)[.]{.smallcaps}

[^85]: *See* [Md. Code Ann., Est. & Trusts § 4-105.]{.smallcaps}

[^86]: *See* Beyer, *Theoretical Constructs and Empirical Findings*,
    *supra* note 7, at 771. *See also* Gerry W. Beyer, *Statutory Will
    Methodologies - Incorporated Forms vs. Fill-In Forms: Rivalry or
    Peaceful Coexistence?*, 94 [Dick. L. Rev.]{.smallcaps} 231 (1990).

[^87]: *See* Beyer, *Theoretical Constructs and Empirical Findings*,
    *supra* note 7, at 771.

[^88]: *See* Gerry W. Beyer, *Statutory Fill-in-the-Blank Will Forms,*
    [Probate and Property]{.smallcaps}, Nov./Dec. 1996, at 26
    \[hereinafter Beyer, *Fill-in-the-Blank Will Forms*\].

[^89]: In 1996, the National Conference for Commissioners on Uniform
    State Laws removed the Uniform Statutory Wills Act after only twelve
    years from the list of uniform state laws. Minutes of the Third
    Meeting of the Executive Committee of the National Conference of
    Commissioners on Uniform State Laws (July 16, 1996) (on file with
    the national Conference of Commissioners).

[^90]: [N.M. Stat. Ann. § 45-2A-17 (M]{.smallcaps}ichie 1995).

[^91]: [Mass. Gen. Laws Ann.]{.smallcaps} ch. 191B, § 1-1.

[^92]: [Cal. Prob. Code § 6240 (]{.smallcaps}West 1990).

[^93]: [Me. Rev. Stat. Ann.]{.smallcaps} tit. 18-A, § 2-514 (West 1998).

[^94]: [Wis. Stat. Ann.]{.smallcaps} § 853.55 (West 1991).

[^95]: [Mass. Gen. Laws Ann.]{.smallcaps} ch. 191B, § 1-1 (West 1994).

[^96]: *See* [Mich. Comp. Laws Ann. § 700.123]{.smallcaps}c (West 1995),
    *repealed by* Pub Acts 1998, No. 386**,** § 8101 (effective Apr. 1,
    2000).

[^97]: Telephone Interview with Lawrence W. Wagonner, Professor,
    University of Michigan School of Law (July 14, 1999).

[^98]: *See* Beyer, *Fill-in-the-Blank Will Forms*[,]{.smallcaps}
    *supra* note 87, at 27.

[^99]: *See* Beyer, *Theoretical Constructs and Empirical Findings,*
    *supra* note 7, at 777.

[^100]: *See id.* at 778-79.

[^101]: *See, e.g.,* [Cal. Prob. Code §]{.smallcaps} 6240 ("Read the
    whole will first. If you do not understand something, ask a lawyer
    to explain it to you."); [Wis. Stat. Ann. §]{.smallcaps} 853.55 ("IF
    THIS WISCONSIN BASIC WILL WITH TRUST DOES NOT FIT YOUR NEEDS, YOU
    MAY WANT TO CONSULT WITH A LAWYER."); [Me. Rev. Stat.
    Ann.]{.smallcaps} tit. [18-A §]{.smallcaps} 2-514 ("IF YOU HAVE ANY
    DOUBTS WHETHER OR NOT THIS WILL ADEQUATELY SETS OUT YOUR WISHES FOR
    THE DISPOSITION OF YOUR PROPERTY, YOU SHOULD CONSULT A LAWYER.").

[^102]: *See* [Mass. Gen. Laws Ann.]{.smallcaps} ch. 191B, § 5 (limits
    amount available to spouse with issue to \$300,000); [N.M. Stat.
    Ann.]{.smallcaps} § 45-2A-6 (limits amount available to spouse with
    issue to \$150,000).

[^103]: *See* Beyer, *Theoretical Constructs and Empirical Findings,
    supra* note 7, at 777.

[^104]: *See id.*

[^105]: *See id.*

[^106]: *See supra* note 5 and accompanying text.

[^107]: [Ark. Code Ann. § 28-40-117 (]{.smallcaps}Michie 1987).

[^108]: [Tenn. Code Ann. §§ 32-2-105, -1-105 (1984).]{.smallcaps}

[^109]: [N.C. Gen. Stat. § 31-3.4, -18.2, -18.4 (1984).]{.smallcaps}

[^110]: [Ark. Code Ann. § 28-25-104]{.smallcaps}.

[^111]: *See id.* [§§ 28-25-104, -40-117]{.smallcaps}.

[^112]: *Id.* [§ 28-25-104]{.smallcaps}.

[^113]: *Id.* [§ 28-40-117(]{.smallcaps}b[)]{.smallcaps}.

[^114]: [Black's Law Dictionary 366]{.smallcaps} (6th ed. 1990).

[^115]: 253 S.W.2d 351 (Ark. 1952).

[^116]: *Id.* at 353 (citing Dewein v. State, 179 S.W. 346 (1915)).

[^117]: [Black's Law Dictionary 468 (]{.smallcaps}6th ed. 1990).

[^118]: 288 S.W.2d 595 (Ark. 1956).

[^119]: *See id.* at 596.

[^120]: *See id.*

[^121]: *Id.*

[^122]: 810 S.W.2d 952 (Ark. 1991). *See also* Earney v. Sharp, 846
    S.W.2d 649 (Ark. 1993). Although these cases did deal with the
    statutory provision for an ordinary will, the requirement for
    disinterested and credible witnesses is the same for holographic
    wills.

[^123]: *See* Sharp, 810 S.W.2d at 952 (citing [Ark. Code
    Ann]{.smallcaps}. § 28-40-117(a))*.* Section 28-40-117(a) requires
    only two witnesses for proof of an ordinary will. [Ark. Code
    Ann]{.smallcaps}. 28-40-117(a).

[^124]: *Id.*

[^125]: *See id.* at 953 (citing [Ark. Code Ann]{.smallcaps}. §
    28-40-117(a)). On remand, the probate judge allowed additional proof
    of the will. The case was again appealed to the Arkansas Supreme
    Court. Without considering the additional proof, the court
    reiterated its holding in *In re* *Estate of Sharp* concerning the
    two disqualified witnesses. Earney, 846 S.W.2d at 649. Reversing and
    remanding the case again, the court noted that lack of competent and
    disinterested witnesses resulted in a failure of proof. *Id.*

[^126]: [Ark. Code Ann. § 28-25-104]{.smallcaps}

[^127]: *See* [N.C. Gen. Stat. § 31-3.4 (1984).]{.smallcaps} The North
    Carolina holographic wills statute is as follows:

    > \(a\) A holographic will is a will:
    >
    > \(1\) Written entirely in the handwriting of the testator but when
    > all the words appearing on a paper in the handwriting of the
    > testator are sufficient to constitute a valid holographic will,
    > the fact that other words or printed matter appear thereon not in
    > the handwriting of the testator, and not affecting the meaning of
    > the words in such handwriting, shall not affect the validity of
    > the will, and
    >
    > \(2\) Subscribed by the testator, or with his name written in or
    > on the will in his own handwriting, and
    >
    > \(3\) Found after the testator\'s death among his valuable papers
    > or effects, or in a safe-deposit box or other safe place where it
    > was deposited by him or under his authority, or in the possession
    > or custody of some person with whom, or some firm or corporation
    > with which, it was deposited by him or under his authority for
    > safekeeping.

    *Id*[.]{.smallcaps}

[^128]: *See id.* § 31-3.4(a)(1).

[^129]: *See* Pounds v. Litaker, 71 S.E.2d 39, 40 (N.C. 1952). This
    interpretation of the requirements of a holographic will generate
    some concern as to the validity of a fill-in-the-blank will. The
    Supreme Court of North Carolina stated that "\[a\]n instrument which
    contains printed matter is not entitled to probate as a holographic
    will where the printed matter aids in expressing the intention of
    the testator." *Id.* (citing 57 [Am. Jur]{.smallcaps}. *Wills* § 634
    (1948)). Noting that a blank form could be used to complete a will,
    the court acknowledged that a holographic will is generally valid
    even if it contains words not in the handwriting of the testator
    provided the words were not necessary and did not affect the meaning
    of the document. *Id.* at 42.

[^130]: [N.C. Gen. Stat. § 31-18.2.]{.smallcaps} *See also* *In re* Will
    of Loftin, 210 S.E.2d 897 (N.C. Ct. App. 1975) (holding that
    requirements of statute were not met concerning a holographic
    codicil where only one witness could attest that the handwriting was
    that of the decedent). The North Carolina holographic will probate
    provisions are as follows:

    > A holographic will may be probated only in the following manner:
    >
    > \(1\) Upon the testimony of at least three competent witnesses
    > that they believe that the will is written entirely in the
    > handwriting of the person whose will it purports to be, and that
    > the name of the testator as written in or on, or subscribed to,
    > the will is in the handwriting of the person whose will it
    > purports to be; and
    >
    > \(2\) Upon the testimony of one witness who may, but need not be,
    > one of the witnesses referred to in subdivision (1) of this
    > section to a statement of facts showing that the will was found
    > after the testator\'s death as required by G.S. 31-3.4.

    [N.C. Gen. Stat. § 31-18.2.]{.smallcaps}

[^131]: *See* Loftin, 210 S.E.2d at 899 (concluding that a witness who
    testifies to being "well acquainted" with the decedent's handwriting
    and who was not cross-examined on that point was presumed
    competent). Indeed, there is no requirement the witnesses actually
    observed the testator write or sign the will. *See* N.C. [Gen.
    Stat]{.smallcaps}. § 31-3.4(b).

[^132]: *Id*[.]{.smallcaps} § 31-3.4(a)(3). The testimony of at least
    one witness is necessary to establish the location of the
    holographic will. *Id.* § 31-18.2(2) (referencing section
    31-3.4(a)(3)).

[^133]: *See id.* [§ 31-3.4(]{.smallcaps}a[)(3)).]{.smallcaps}

[^134]: *See In re* Will of Church, 466 S.E.2d 297, 298 (N.C. Ct. App.
    1996) (finding that a pocketbook was a safe place because testatrix
    kept all her important documents in pocketbooks).

[^135]: *See In re* Will of Gilkey, 124 S.E.2d 155, 158 (N.C. 1962)
    (affirming the trial court's determination that a will placed in a
    safety deposit box by the testatrix's son and not by the testatrix
    herself was sufficient under the statute requiring the will be found
    in a place with valuable papers)*.*

[^136]: *See id.* "The requirement that the writing be found after the
    death among the testatrix's valuable papers was to show the author's
    evaluation of the document, important because lodged with important
    documents, to become effective upon death because left there by the
    author." *Id.*

[^137]: *Id.*

[^138]: *See id.* at 156. Tennessee, the last state to use a valuable
    papers requirement, repealed it in 1941. *See id.* at 158. *See
    also* Smith v. Smith, 232 S.W.2d 338, 342 (Tenn. Ct. App. 1949)
    (discussing repeal of the valuable papers requirement and the
    application of the law without that provision).

[^139]: [N.C. Gen. Stat. § 31-18.4 (1984) (]{.smallcaps}emphasis
    added[).]{.smallcaps} The North Carolina armed forces probate
    provision reads as follows:

    > In addition to the methods already provided in existing statutes
    > therefor, a will executed by a person while in the armed forces of
    > the United States or the merchant marine, shall be admitted to
    > probate (whether there were subscribing witnesses thereto or not,
    > if they, or either of them, is out of the State at the time said
    > will is offered for probate) upon the oath of at least three
    > credible witnesses that the signature to said will is in the
    > handwriting of the person whose will it purports to be. Such will
    > so proven shall be effective to devise real property as well as to
    > bequeath personal estate of all kinds. This section shall not
    > apply to cases pending in courts and at issue on the date of its
    > ratification.

    *Id.*

[^140]: *See id.*

[^141]: *See id.*

[^142]: *See id. See also In re* Will of Loftin, 210 S.E.2d 897 (N.C.
    Ct. App. 1975).

[^143]: [N.C. Gen. Stat. § 31-18.4 (1984).]{.smallcaps}

[^144]: *See* Smith v. Smith, 232 S.W.2d 338, 341-2 (Tenn. Ct. App.
    1949) (discussing the previous, more stringent holographic will
    provision, including now repealed valuable papers provision). To the
    extent a military member dies with a holographic will executed on or
    before February 15, 1941, the old requirements still apply. *See*
    [Tenn. Code Ann. § 32-1-110]{.smallcaps} (1984) (provision
    preserving previous holographic will requirements for wills executed
    on or before February 15, 1941).

[^145]: [Tenn. Code Ann. § 32-1-105]{.smallcaps}; Smith, 232 S.W.2d at
    341.

[^146]: *See* [Unif. Probate Code]{.smallcaps} § 2-503 (1993). The
    Tennessee statute does not explain the meaning of the term *material
    portions* and there is no case law interpreting that provision.
    Presumably, printed words that appear on such a document will not
    affect the probate of the will provided those provisions are not
    essential to the meaning of the handwritten portion of the document.
    This would be consistent with other jurisdictions with similar
    provisions. *See supra* notes 15-24 and accompanying text.

[^147]: Smith, 232 S.W.2d at 341. The court noted further that
    notwithstanding the repeal of the valuable papers requirement, the
    location of the purported will (whether or not found among other
    important papers or in some other safe place) is sound evidence of
    the testator's intent that the document actually serve as a will.
    *Id.* at 342.

[^148]: *See* [Tenn. Code Ann. § 32-1-105;]{.smallcaps} Smith, 232
    S.W.2d at 341 (noting that the testator not even required to know he
    was a will). *See also* Davidson v. Gilreath, 273 S.W.2d 717 (Tenn.
    Ct. App. 1954). This case explains the three step inquiry that must
    be followed in Tennessee: (1) Whether the will was a valid
    holographic will, (2) Whether two witnesses were able to testify to
    the handwriting of the testator and (3) Whether the testator's
    intent was to make the disputed document the last will and
    testament. *Id*. at 718.

[^149]: *See* Smith, 232 S.W.2d at 341; Scott v. Adkins, 314 S.W.2d 52,
    56-57 (Tenn. Ct. App. 1957). Under the previous holographic will
    provision found in section 32-1-110, three "credible" witnesses were
    required to prove the will. [Tenn. Code Ann. §
    32-1-110.]{.smallcaps} In addition, interested witnesses were
    considered competent to testify on the issue. Franklin v. Franklin,
    16 S.W. 557, 558 (Tenn. 1890). Whether these standards are
    applicable today is doubtful, in light of the removal of this
    language from the current holographic wills provision and the stated
    desire to rely on the rules of evidence to evaluate the witnesses'
    testimony.

[^150]: *See* [Tenn. Code Ann. § 32-1-105.]{.smallcaps}

[^151]: *See id*[. § 32-1-104.]{.smallcaps}

[^152]: *See id*[. § 32-2-105.]{.smallcaps}

[^153]: Throughout the text of this section, references will be made to
    *option one* and *option two* under section [32-2-105.]{.smallcaps}
    This statute does not detail whether the statute is intended to be
    read in its entirety or in disparate sections. Without clear
    statutory guidance and no state case law on this statute, the
    statute will be interpreted as two distinct military probate options
    for the purposes of this article.

[^154]: *See id*[. § 32-2-105(]{.smallcaps}a[)]{.smallcaps}. In its
    entirety the provision reads:

    > \(a\) Any last will of any person in the military or naval service
    > of the United States, made outside this state, or at sea while in
    > such service, may be admitted to probate by the probate court of
    > the county where the testator was domiciled, upon the certificate
    > of the colonel, lieutenant colonel, major, or commanding officer
    > of the regiment, or captain or commandant of the vessel, setting
    > forth that the testator acknowledged, or that the subscribing
    > witnesses proved, the will before him; but the heirs or next of
    > kin of the testator may, in like manner and time prescribed for
    > other contests, contest the validity of the will, in which case
    > the authentication shall be prima facie evidence.

    *Id.*

[^155]: *Id.*

[^156]: *See id.*

[^157]: *Id.*

[^158]: *See id.*

[^159]: *Id.*

[^160]: *See id.*

[^161]: *Id.* [§ 32-2-105(]{.smallcaps}b[)(1).]{.smallcaps} The second
    option reads:

    > The will of any person serving in the armed forces of the United
    > States or any auxiliary thereto and executed while serving
    > therein, may be admitted to probate upon proof satisfactory to the
    > tribunal having jurisdiction over such probate of the genuineness
    > of the signature of the maker of such will, where it first be
    > shown that proof of due execution of such will may not be had of
    > the subscribing witnesses thereto, if any, due to the inability to
    > locate them, their death or the unavailability of their testimony
    > for any reason adjudged sufficient by the tribunal having
    > jurisdiction over such probate.

    *Id.*

[^162]: *Id.* [(]{.smallcaps}emphasis added)[.]{.smallcaps}

[^163]: *See id.* [§ 32-1-104 (1984) ("]{.smallcaps}The execution of a
    will, other than a holographic or nuncupative will, must be by the
    signature of the testator and of at least two (2) witnesses.").

[^164]: *See id.* [§ 32-2-105(]{.smallcaps}b[)(1) (1984).]{.smallcaps}

[^165]: 314 S.W.2d 39 (Tenn. Ct. App. 1957).

[^166]: *See id.* at 40-1.

[^167]: *See* [Tenn. Code Ann. § 32-1-105.]{.smallcaps}

[^168]: *See* Jones*,* 314 S.W.2d at 45.

[^169]: *Id.* at 42.

[^170]: *See id.* The court also refused to incorporate the valid 1932
    holographic will into the holographic will created in 1952 which
    would have allowed for the valid signature in 1932 to be applied to
    the document in 1952. Rather, the court insisted that the two wills
    were separate writings. *Id.* at 44.

[^171]: *Id.* at 42.

[^172]: *Id.* at 47.

[^173]: *See* [Tenn. Code Ann. § 32-2-105.]{.smallcaps}

[^174]: *Id.*[§ 32-2-105(]{.smallcaps}b[)(2).]{.smallcaps} That
    provision reads:

    > \(2\) However, no such will shall be admitted to probate where the
    > same be offered for probate more than ten (10) years from the date
    > of a declaration by the president of the United States or a
    > resolution of Congress declaring the end of hostilities during
    > which such will was executed and in which the testator was a
    > member of the armed forces, and nothing provided in this
    > subsection with reference to such wills shall void modes of
    > probating wills made by members of the armed forces but this
    > subsection shall, as to the wills of members of the armed forces
    > made as provided herein, afford an additional method of probate.

    *Id.*

[^175]: *See* [Unif. Probate Code]{.smallcaps} § 2-515 (1993). The
    following states are examples of jurisdictions that allow for the
    deposit of the original will with the clerk of the court. [S.D.
    Codified Laws]{.smallcaps} § 29A-2-515 (1995), [N.M. Stat.
    Ann.]{.smallcaps} §45-2-515 (1993), [Mont. Code Ann.]{.smallcaps} §
    72-2-535 (1993), [Del. Code Ann.]{.smallcaps} tit. 12 § 2513 (1998);
    [Wis. Stat.]{.smallcaps} § 853.09(1998) and [Colo. Rev. Stat. §
    15-11-515 (1999).]{.smallcaps}

[^176]: *See* [Unif. Probate Code]{.smallcaps} § 2-515.

[^177]: Telephone Interview with Richard Schlegel, Probate Court
    Administrator, El Paso County, Colorado (July 22, 1999).

[^178]: [Unif. Probate Code]{.smallcaps} § 2-516.

[^179]: *Id.*

[^180]: *See* Gildea, *supra* note 6, at 235.

[^181]: [Daniel S. Remsen, The Preparation of Wills and Trusts 13
    (1930).]{.smallcaps}

[^182]: For an overview of the preventive law program and suggestions on
    how to establish a viable program, see Lieutenant Colonel Michael
    Rodgers, Preventive Law Programs: A SWIFT Approach, 47 [A.F. L.
    Rev]{.smallcaps}. 111 (1999).

[^183]: *See, e.g.,* TJAG Policy Letter 18, *Preventive Law and Legal
    Assistance Policy* (Feb. 4, 1998) (Office of The Judge Advocate
    General, Washington, D.C.) \[hereinafter TJAG Policy Letter 18\].

[^184]: As an example, the legal office Peterson Air Force Base
    developed an "Emergency Will" to be used in the event of a computer
    shutdown. A provision on the face of the document is printed in
    capital letters and reads, "This is a holographic will example. The
    testator must write this document in his/her own handwriting. Do not
    allow anyone to use this example as a fill-in-the-blank will."

[^185]: TJAG Policy Letter 18 emphasizes the importance of wills in the
    Air Force. "A will is the most significant document many of our
    clients will ever sign. Our preparation and execution of those
    documents in our office should reflect that importance. We can do so
    by establishing a will program that provides the highest degree of
    professionalism." TJAG Policy Letter 18, s*upra* note 182.