NASA revealed exciting news earlier this week when they announced the discovery of liquid water flowing on the surface of Mars.  The presence of water is an encouraging find.  It boosts the prospects of discovering life on our nearest neighbour, and it raises questions about whether the planet could someday host human visitors.

The goal of sending people to the Martian surface now seems more attainable than ever.  Talk of sending astronauts to Mars is likely to accelerate over the coming months.  With people travelling to and someday settling on the red planet, a whole host of legal issues are likely to arise about how people will live on Mars, and some day, how we will deal with death in space.

The problem of applying testamentary law in space is a novel one.  Perhaps the closest historical analog is the example of the explorers who set sail centuries ago in search of strange, new places across the seas.  One of the legal developments that arose was the exception for privileged wills.  Sailors at sea were allowed to make wills without them being subject to the same formal requirements that governed other wills.

Today, section 5 of Ontario’s Succession Law Reform Act addresses the formal validity of wills made by “a sailor when at sea or in the course of a voyage”.  The section provides for a relaxation of the usual requirements for a will to be formally valid, including the requirement for two witnesses in the case of an attested will and the requirement that the will be wholly in the handwriting of the testator in the case of a holograph will.  It provides that a sailor at sea can make a will by a writing, signed by the testator or by some other person in his or her presence and by his or her direction, without any other formalities.  The section also applies to members of the Canadian Forces on active service and members of any other naval, land or air force while on active service.

There are no cases testing whether this provision or analogous provisions in other jurisdictions (on Earth) would apply to relax the formal requirements for a will where it is made during a space flight or while residing on Mars.  It’s possible that astronauts in flight could be considered to be analogous to sailors at sea.  It’s also possible that NASA astronauts would be members of a military force on active service, and accordingly gain access to the use of privileged wills.

It seems that it will be still be some time before we will need to consider the problems associated with living on Mars, and hopefully much longer before issues associated with death on Mars need to be sorted out.  Perhaps need will spur new and unforeseen innovations in our legal system, just as naval exploration once did.

Mars is probably a forced heirship planet, anyway.