A will, an advance healthcare directive, and a power of attorney are the foundational elements of the most basic estate plans. Out of the three, people would consider themselves generally most familiar with the idea of a will; however, an incorrect understanding of what the term truly means often leaves room for misunderstanding. One of the most common misconceptions is a false assumption that “living will” and “will” are synonymous terms. This error is so common that it can even be found in popular TV shows. For those of you familiar with the Marvel Universe, you might have seen this error exhibited in a recent episode of WandaVision, a television series focused on a superhuman character, Wanda, and a man-made artificial intelligence character, Vision:

Acting Director Hayward: Until very recently, [S.W.O.R.D. Headquarters] was the top-secret location of the Vision’s corpse. Nine days ago, Maximoff stormed our facility, stole the Vision’s body, and resurrected him. 

Agent Woo: But that’s in direct violation of Section 36B of the Sokovia Accords [legislation designed to regulate superbeings].

Acting Director Hayward: And The Vision’s own living will.

Agent Woo: He didn’t want to be anybody’s weapon.

Acting Director Hayward: Maximoff, in her grief, disregarded his wishes.

Most fans of the MCU (Marvel Cinematic Universe) understood that Director Hayward was using “living will” to refer to wishes that Vision expressed before his death; however, the actual term “living will” can become problematic in the real world, where it is often misapplied in circumstances where a traditional will is the actual document needed. While it’s merely amusing when misused on TV, understanding the difference is critical from an estate planning perspective. On many DIY legal websites, a “living will” is one of the most searched documents. This reflects an ongoing misunderstanding and incorrect belief that it is the only document one needs to protect their families in the event of their passing. 

A will is an estate planning document used to pass on wealth and property to loved ones upon death, but a “living will” has nothing to do with post-death scenarios. A living will is an advance healthcare directive—a critical document that is used to plan for situations when you are still living, but unable to give your informed consent to medical treatment at the time due to incapacity. For example, it could be used to specify the exact type of medical care you desire (or not) should you fall into a coma or suffer major brain trauma.

To be fair to the show’s writers, the “violation” Hayward and Woo discussed could be referring either to the care for Vision’s remains OR the choice to resurrect him. If the latter was the intended reference, then “living will” might be the correct term to use, as a common request included in advance healthcare directives is that “no extraordinary measures be taken to preserve their life” or “do not resuscitate.” While those directives rarely take into account attempts to resuscitate an android or synthetic human, in the universe of the show it’s possible that Vision did have a living will stating he did not desire any extraordinary measures to “reactivate him” should he ever go offline. 

From context, however, it seems far more likely that they were focusing on the care of his remains, which would NOT fall under the guidance of a living will. 

As the episode unfolds, additional estate planning mistakes emerge. It is clearly stated that Vision’s expressed wish was for his body to be kept safe from weaponization—yet somehow, his remains wind up in the hands of an organization titled S.W.O.R.D. in which the “W” literally stands for “Weapon”! While a valid will could have protected his remains, a “living will” unfortunately could not speak to that decision. It is doubtful he would have agreed to any provision in the Accords stating that his remains would wind up with an organization so obviously in conflict with his assumed intent.

Assuming that Vision had executed a valid will and not just a “living will,” the decision regarding who gained custody of his remains (“gained custody” refers, in short, to the person to whom his remains would legally go after his death) would have fallen, as usual, to a probate court to determine. While a will is an important estate planning document, an astonishing 50% of those with a properly executed will mistakenly assume this prevents loved ones from having to go through the process with a probate court. 

The fact that Vision’s body was in the hands of a government agency at all is an indication that perhaps the law considered Vision himself as property rather than a person. Episode 5 reveals that S.W.O.R.D. had possession of Vision’s body a mere two weeks after the events of Avengers: Endgame (the previous movie in which he died). A probate court could not have made a final decision that quickly, as the average probate court proceeding takes on average a year or more to complete—but we’ll explore all this more next time.

What we learn for now from the creators of WandaVision is that not even superheroes are immune from estate planning mistakes. 

This article is a service of AMO LAW, Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Legacy Planning Session during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. Schedule a Legacy Planning Session and mention this article to find out how to get this $750 session at no charge.