When Military Wills Do Not Contemplate Future-Born Children

Bryan Cave Leighton Paisner

Estate planning probably isn’t high on the priority list for many 20-year-olds, even if they are 20-year-olds serving in uniform.  While the Armed Forces may make it easy for those serving our country to get a will, these testators may need to be reminded to update those wills they executed as certain life events occur, like getting married or having children.  So it was in Hobbs v. Winfield, where the Georgia Supreme Court determined that the military will executed by a 20-year-old did not contemplate the birth of future children and, therefore, the birth of those children revoked his will.

At 20-years-old, while serving in the military, the testator executed a will.  The will named the testator’s mother as his sole beneficiary and personal representative, and, if his mother predeceased him, his ‘grandmother’ was the successor beneficiary and personal representative.  The testator then had the first of his three children twelve years after he executed the will, but he never amended or revoked his will before he died.

A caveat to the will was filed on the grounds that Georgia law generally provides that, when a will does not make provision for the future birth of children to the testator and the testator does, in fact, have children after the execution of the will, the will is revoked.  The result would be a finding that the testator died intestate and the children are the testator’s legal heirs.

The testator’s ‘grandmother,’ however, contended that the will actually did contemplate the birth of future-born children through this provision:

I have served in the Armed Forces of the United States.  Therefore, I direct my Personal Representative to consult the legal assistance officer at the nearest military installation to ascertain if there are any benefits to which my dependents are entitled by virtue of my military affiliation at the time of my death.  Regardless of my military status at the time of my death, I direct my Personal Representative to consult with the nearest Veterans Administration and Social Security Administration office to ascertain if there are any benefits to which my dependents may be entitled.

The ‘grandmother’ argued that the reference to “dependents” would include future-born children.

The Georgia Supreme Court was “unpersuaded.”

“Dependents” is a much broader term than “children.”  It may, for example, include a spouse or even dependent parents.  Thus, reference to “dependents” was not a specific enough contemplation of future-born children.  Furthermore, the will merely directed the personal representative to “consult” with government authorities “to ascertain.”  The Court noted that this language cited was nothing more than a standard clause recommended for use in wills drafted by military assistance lawyers for service personnel to alert the “survivors” of former or retired military personnel that they may be entitled to survivor benefits that are difficult or impossible to recover if not obtained promptly after the veteran’s death.

This opinion serves two important purposes.  First, it is a reminder to remind those who execute wills to be wary of life changes that may require a revocation, amendment, or codicil.  Second, the opinion reinforces that the Georgia appellate courts remain very focused on the precise, actual words used in estate planning instruments.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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