A will or testament is a legal document that expresses a person's (
testator
A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. 556 ...
) wishes as to how their property (
estate) is to be distributed after their death and as to which person (
executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see
inheritance
Inheritance is the practice of receiving private property, Title (property), titles, debts, entitlements, Privilege (law), privileges, rights, and Law of obligations, obligations upon the death of an individual. The rules of inheritance differ ...
and
intestacy
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the esta ...
.
Though it has at times been thought that a "will" historically applied only to real property while "testament" applied only to personal property (thus giving rise to the popular title of the document as "last will and testament"), the historical records show that the terms have been used interchangeably. Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary
trust
Trust often refers to:
* Trust (social science), confidence in or dependence on a person or quality
It may also refer to:
Business and law
* Trust law, a body of law under which one person holds property for the benefit of another
* Trust (bus ...
that is effective only after the death of the testator.
History
Throughout most of the world, the disposition of a dead person's estate has been a matter of social custom. According to
Plutarch
Plutarch (; grc-gre, Πλούταρχος, ''Ploútarchos''; ; – after AD 119) was a Greek Middle Platonist philosopher, historian, biographer, essayist, and priest at the Temple of Apollo in Delphi. He is known primarily for his ''P ...
, the written will was invented by
Solon
Solon ( grc-gre, Σόλων; BC) was an Athenian statesman, constitutional lawmaker and poet. He is remembered particularly for his efforts to legislate against political, economic and moral decline in Archaic Athens.Aristotle ''Politics'' ...
. Originally, it was a device intended solely for men who died without an
heir.
The English phrase "will and testament" is derived from a period in English law when Old English and
Law French
Law French ( nrf, Louai Français, enm, Lawe Frensch) is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, be ...
were used side by side for maximum clarity. Other such
legal doublet A legal doublet is a standardized phrase used frequently in English legal language consisting of two or more words that are irreversible binomials and frequently synonyms, usually connected by "and", such as "null and void". The order of the words ...
s include "
breaking and entering
Burglary, also called breaking and entering and sometimes housebreaking, is the act of entering a building or other areas without permission, with the intention of committing a criminal offence. Usually that offence is theft, robbery or murder ...
" and "peace and quiet".
Freedom of disposition
![Tennessee williams will](https://upload.wikimedia.org/wikipedia/commons/b/b6/Tennessee_williams_will.jpg)
The concept of the freedom of disposition by will, familiar as it is in modern England and the United States, both generally considered
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
systems, is by no means universal. In fact, complete freedom is the exception rather than the rule.
Civil law systems often put some restrictions on the possibilities of disposal; see for example "
Forced heirship
Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed and which tends to guarantee an inheritance for family of the deceased.
In forced heirship, the estate of a deceased (''de cuju ...
".
LGBT
' is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
The LGBT term is a ...
advocates have pointed to the inheritance rights of spouses as desirable for same-sex couples as well, through
same-sex marriage
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...
or
civil union
A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...
s. Opponents of such advocacy rebut this claim by pointing to the ability of same-sex couples to disperse their assets by will. Historically, however, it was observed that "
en if a same-sex partner executes a will, there is risk that the survivor will face prejudice in court when disgruntled heirs challenge the will", with
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s being more willing to strike down wills leaving property to a same-sex partner on such grounds as
incapacity
Legal capacity is a quality denoting either the legal aptitude of a person to have rights and liabilities (in this sense also called transaction capacity), or altogether the personhood itself in regard to an entity other than a natural person ( ...
or
undue influence
Undue influence (UI) is a psychological process by which a person's free will and judgement is supplanted by that of another. It is a legal term and the strict definition varies by jurisdiction. Generally speaking, it is a means by which a per ...
.
Types of wills
Types of wills generally include:
*
nuncupative (non-culpatory) – oral or dictated; often limited to sailors or military personnel.
*
holographic will – written in the hand of the testator; in many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.
* self-proved – in solemn form with affidavits of subscribing witnesses to avoid probate.
* notarial – will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States).
* mystic – sealed until death.
* serviceman's will – will of person in active-duty military service and usually lacking certain formalities, particularly under English law.
* reciprocal/mirror/mutual/husband and wife wills – wills made by two or more parties (typically spouses) that make similar or identical provisions in favor of each other.
*
joint will
Joint wills and mutual wills are closely related terms used in the law of wills to describe two types of testamentary writing that may be executed by a married couple to ensure that their property is disposed of identically. Neither should be co ...
– similar to reciprocal wills but one instrument; has a binding effect on the surviving testator(s). First documented in
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
in 1769.
* unsolemn will – will in which the executor is unnamed.
* will in solemn form – signed by testator and witnesses.
Some jurisdictions recognize a
holographic will, made out entirely in the testator's own hand, or in some modern formulations, with material provisions in the testator's hand. The distinctive feature of a holographic will is less that it is handwritten by the testator, and often that it need not be witnessed. In Louisiana this type of testament is called an olographic testament. It must be entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. Any additions or corrections must also be entirely hand written to have effect.
In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman's will. A minority of jurisdictions even recognize the validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used.
Terminology
*
Administrator – person appointed or who petitions to administer an estate in an intestate succession. The antiquated English term of administratrix was used to refer to a female administrator but is generally no longer in standard legal usage.
* ''Apertura tabularum'' – in ancient law books, signifies the breaking open of a last will and testament.
*
Beneficiary – anyone receiving a gift or benefiting from a trust
*
Bequest
A bequest is property given by will. Historically, the term ''bequest'' was used for personal property given by will and ''deviser'' for real property. Today, the two words are used interchangeably.
The word ''bequeath'' is a verb form for the act ...
– testamentary gift of
personal property, traditionally other than money.
*
Codicil
Codicil may refer to:
* Codicil (will), subsequent change or modification of terms made and appended to an existing trust or will and testament
* A modification of terms made and appended to an existing constitution, treaty, or standard form c ...
– (1) amendment to a will; (2) a will that modifies or partially revokes an existing or earlier will.
*
Decedent
Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including brainstem, and brain ...
– the deceased (U.S. term)
* Demonstrative Legacy – a gift of a specific sum of money with a direction that is to be paid out of a particular fund.
*
Descent
Descent may refer to:
As a noun Genealogy and inheritance
* Common descent, concept in evolutionary biology
* Kinship, one of the major concepts of cultural anthropology
**Pedigree chart or family tree
** Ancestry
** Lineal descendant
**Heritag ...
– succession to real property.
*
Devise
Devise may refer to:
* To invent something
* A disposal of real property in a will and testament, or the property itself which has been disposed of
* Devise, Somme
See also
* Device (disambiguation)
* Devizes
Devizes is a market town and civ ...
– testamentary gift of
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
.
*
Devisee
A will or testament is a legal document that expresses a person's (testator) wishes as to how their property ( estate) is to be distributed after their death and as to which person ( executor) is to manage the property until its final distributi ...
– beneficiary of real property under a will.
* Distribution – succession to personal property.
*
Executor
An executor is someone who is responsible for executing, or following through on, an assigned task or duty. The feminine form, executrix, may sometimes be used.
Overview
An executor is a legal term referring to a person named by the maker of a ...
/executrix or personal representative
R– person named to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator's wishes in the will. In most cases, the testator will nominate an executor/PR in the will unless that person is unable or unwilling to serve. In some cases a
literary executor
The literary estate of a deceased author consists mainly of the copyright and other intellectual property rights of published works, including film, translation rights, original manuscripts of published work, unpublished or partially completed wo ...
may be appointed to manage a literary estate.
*
Exordium clause is the first paragraph or sentence in a will and testament, in which the testator identifies himself or herself, states a legal domicile, and revokes any prior wills.
* Inheritor – a beneficiary in a succession, testate or intestate.
*
Intestate
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estat ...
– person who has not created a will, or who does not have a valid will at the time of death.
*
Legacy
In law, a legacy is something held and transferred to someone as their inheritance, as by will and testament. Personal effects, family property, marriage property or collective property gained by will of real property.
Legacy or legacies may refer ...
– testamentary gift of personal property, traditionally of money. Note: historically, a legacy has referred to either a gift of real property or personal property.
*
Legatee
A legatee, in the law of wills, is any individual or organization bequeathed any portion of a testator
A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person ...
– beneficiary of personal property under a will, i.e., a person receiving a legacy.
*
Probate
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the sta ...
– legal process of settling the estate of a deceased person.
*
Residuary estate
A residuary estate, in the law of wills, is any portion of the testator's estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails. It is also known as a residual estate or ...
- the portion of an estate remaining after the payment of expenses and the distribution of specific bequests; this passes to the residuary legatees.
*
Specific legacy (or specific bequest) – a testamentary gift of a precisely identifiable object.
*
Testate
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estat ...
– person who dies having created a will before death.
*
Testator
A testator () is a person who has written and executed a Will (law), last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2 ...
– person who executes or signs a will; that is, the person whose will it is. The antiquated English term of Testatrix was used to refer to a female.
*
Trustee
Trustee (or the holding of a trusteeship) is a legal term which, in its broadest sense, is a synonym for anyone in a position of trust and so can refer to any individual who holds property, authority, or a position of trust or responsibility to t ...
– a person who has the duty under a
will trust
A testamentary trust (sometimes referred to as a will trust or trust under will) is a trust which arises upon the death of the testator, and which is specified in their will. A will may contain more than one testamentary trust, and may address ...
to ensure that the rights of the beneficiaries are upheld.
Requirements for creation
![Quaid-i-Azam's Will at Islamia College Peshawar](https://upload.wikimedia.org/wikipedia/commons/e/ec/Quaid-i-Azam%27s_Will_at_Islamia_College_Peshawar.jpg)
Any person over the
age of majority
The age of majority is the threshold of legal adulthood as recognized or declared in law. It is the moment when minors cease to be considered such and assume legal control over their persons, actions, and decisions, thus terminating the contr ...
and having "
testamentary capacity
In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called sound mind and memory or disposing mind and memory.
...
" (i.e., generally, being of
sound mind) can make a will, with or without the aid of a lawyer.
Content of the will
Required content varies, depending on the jurisdiction, but generally includes the following:
* The testator must clearly identify themselves as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
* The testator should declare that he or she revokes all previous wills and
codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.
* The testator may demonstrate that he or she has the capacity to dispose of their property ("sound mind"), and does so freely and willingly.
* The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses, these are called "supernumerary" witnesses, if there is a question as to an interested-party conflict. Some jurisdictions, notably
Pennsylvania
Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
, have long abolished any requirement for witnesses. In the United States,
Louisiana
Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
requires both attestation by two witnesses as well as notarization by a notary public.
Holographic will
A holographic will, or olographic testament, is a will and testament which is a holographic document, i.e. it has been entirely handwritten and signed by the testator. Historically, a will had to be signed by witnesses attesting to the validity ...
s generally require no witnesses to be valid, but depending on the jurisdiction may need to be proved later as to the authenticity of the testator's signature.
* If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either (i) disallowing them to receive under the will, or (ii) invalidating their status as a witness. In a growing number of states in the United States, however, an interested party is only an improper witness as to the clauses that benefit him or her (for instance, in
Illinois
Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolita ...
).
* The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.
* One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.
A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt.
In
community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. In the United States, children may be disinherited by a parent's will, except in Louisiana, where a minimum share is guaranteed to surviving children except in specifically enumerated circumstances. Many civil law countries follow a similar rule. In England and Wales from 1933 to 1975, a will could disinherit a spouse; however, since the
Inheritance (Provision for Family and Dependants) Act 1975
The Inheritance (Provision for Family and Dependants) Act 1975 is an Act of the United Kingdom Parliament concerning inheritance in England and Wales. It has been amended, for example to take into account civil partnerships.
Contents
This Act m ...
such an attempt can be defeated by a court order if it leaves the surviving spouse (or other entitled dependent) without "reasonable financial provision".
Role of lawyers
There is no legal requirement that a will be drawn up by a lawyer, and some people may resist hiring a lawyer to draft a will.
People may draft a will with the assistance of a lawyer, use a software product
or will form, or write their wishes entirely on their own. Some lawyers offer educational classes for people who want to write their own will.
When obtained from a lawyer, a will may come as part of an estate planning package that includes other instruments, such as a
living trust.
A will that is drafted by a lawyer should avoid possible technical mistakes that a layperson might make that could potentially invalidate part or all of a will. While wills prepared by a lawyer may seem similar to each other, lawyers can customize the language of wills to meet the needs of specific clients.
International wills
In 1973 an international convention, the ''Convention providing a Uniform Law on the Form of an International Will'', was concluded in the context of
UNIDROIT
UNIDROIT (formally, the International Institute for the Unification of Private Law; French: ''Institut international pour l'unification du droit privé'') is an intergovernmental organization whose objective is to harmonize international privat ...
. The Convention provided for a universally recognised code of rules under which a will made anywhere, by any person of any nationality, would be valid and enforceable in every country that became a party to the Convention. These are known as "international wills". It is in force in Australia, Belgium, Bosnia-Herzegovina, Canada (in 9 provinces, not Quebec), Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia. The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified.
International wills are only valid where the convention applies. Although the U.S. has not ratified on behalf of any state, the Uniform law has been enacted in 23 states and the District of Columbia.
For individuals who own assets in multiple countries and at least one of those countries are not a part of the Convention, it may be appropriate for the person to have multiple wills, one for each country.
In some nations, multiple wills may be useful to reduce or avoid taxes upon the estate and its assets. Care must be taken to avoid accidental revocation of prior wills, conflicts between the wills, to anticipate
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
al and
choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in t ...
issues that may arise during probate.
Revocation
Methods and effect
Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or tearing the physical
document
A document is a written, drawn, presented, or memorialized representation of thought, often the manifestation of non-fictional, as well as fictional, content. The word originates from the Latin ''Documentum'', which denotes a "teaching" or ...
itself, or by striking out the
signature
A signature (; from la, signare, "to sign") is a handwritten (and often stylized) depiction of someone's name, nickname, or even a simple "X" or other mark that a person writes on documents as a proof of identity and intent. The writer of a ...
. In most jurisdictions, partial revocation is allowed if only part of the text or a particular provision is crossed out. Other jurisdictions will either ignore the attempt or hold that the entire will was actually revoked. A testator may also be able to revoke by the physical act of another (as would be necessary if he or she is physically incapacitated), if this is done in their presence and in the presence of witnesses. Some jurisdictions may presume that a will has been destroyed if it had been last seen in the possession of the testator but is found mutilated or cannot be found after their death.
A will may also be revoked by the execution of a new will. Most wills contain stock language that expressly revokes any wills that came before them, because otherwise a court will normally still attempt to read the wills together to the extent they are consistent.
In some jurisdictions, the complete
revocation
Revocation is the act of recall or annulment. It is the cancelling of an act, the recalling of a grant or privilege, or the making void of some deed previously existing. A temporary revocation of a grant or privilege is called a suspension.
Cont ...
of a will automatically revives the next-most recent will, while others hold that revocation leaves the testator with no will, so that their heirs will instead inherit by
intestate succession
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estat ...
.
In
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
,
marriage
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
will automatically
revoke
In trick-taking card games, a revoke (or renege, or ) is a violation of the rules regarding the play of tricks serious enough to render the round invalid. A revoke is a violation ranked in seriousness somewhat below overt cheating, and is cons ...
a will, for it is
presumed that upon marriage a
testator
A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. 556 ...
will want to review the will. A statement in a will that it is made in
contemplation
In a religious context, the practice of contemplation seeks a direct awareness of the divine which transcends the intellect, often in accordance with prayer or meditation.
Etymology
The word ''contemplation'' is derived from the Latin word '' ...
of forthcoming marriage to a named person will override this.
Divorce, conversely, will not revoke a will, but in many jurisdictions will have the effect that the former spouse is treated as if they had died before the testator and so will not benefit.
Where a will has been
accidentally destroyed, on
evidence
Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field.
In epistemology, evidenc ...
that this is the case, a copy will or draft will may be admitted to
probate
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the sta ...
.
Dependent relative revocation
Many jurisdictions exercise an
equitable doctrine known as "dependent relative revocation" ("DRR"). Under this doctrine, courts may disregard a revocation that was based on a mistake of law on the part of the testator as to the effect of the revocation. For example, if a testator mistakenly believes that an earlier will can be revived by the revocation of a later will, the court will ignore the later revocation if the later will comes closer to fulfilling the testator's intent than not having a will at all. The doctrine also applies when a testator executes a second, or new will and revokes their old will under the (mistaken) belief that the new will would be valid. However, if for some reason the new will is not valid, a court may apply the doctrine to reinstate and probate the old will, if the court holds that the testator would prefer the old will to intestate succession.
Before applying the doctrine, courts may require (with rare exceptions) that there have been an alternative plan of disposition of the property. That is, after revoking the prior will, the testator could have made an alternative plan of disposition. Such a plan would show that the testator intended the revocation to result in the property going elsewhere, rather than just being a revoked disposition. Secondly, courts require either that the testator have recited their mistake in the terms of the revoking instrument, or that the mistake be established by clear and convincing evidence. For example, when the testator made the original revocation, he must have erroneously noted that he was revoking the gift "because the intended recipient has died" or "because I will enact a new will tomorrow".
DRR may be applied to restore a gift erroneously struck from a will if the intent of the testator was to enlarge that gift, but will not apply to restore such a gift if the intent of the testator was to revoke the gift in favor of another person. For example, suppose Tom has a will that bequeaths $5,000 to his secretary, Alice Johnson. If Tom crosses out that clause and writes "$7,000 to Alice Johnson" in the margin, but does not sign or date the writing in the margin, most states would find that Tom had revoked the earlier provision, but had not effectively amended his will to add the second; however, under DRR the revocation would be undone because Tom was acting under the mistaken belief that he could increase the gift to $7,000 by writing that in the margin. Therefore, Alice will get 5,000 dollars. However, the doctrine of relative revocation will not apply if the interlineation decreases the amount of the gift from the original provision (e.g., "$5,000 to Alice Johnson" is crossed out and replaced with "$3,000 to Alice Johnson" without Testator's signature or the date in the margin; DRR does not apply and Alice Johnson will take nothing).
Similarly, if Tom crosses out that clause and writes in the margin "$5,000 to Betty Smith" without signing or dating the writing, the gift to Alice will be effectively revoked. In this case, it will not be restored under the doctrine of DRR because even though Tom was mistaken about the effectiveness of the gift to Betty, that mistake does not affect Tom's intent to revoke the gift to Alice. Because the gift to Betty will be invalid for lack of proper execution, that $5,000 will go to Tom's residuary estate.
Election against the will
Also referred to as "electing to take against the will". In the United States, many states have
probate
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the sta ...
statutes that permit the surviving spouse of the decedent to choose to receive a particular share of deceased spouse's estate in lieu of receiving the specified share left to him or her under the deceased spouse's will. As a simple example, under Iowa law (se
Code of Iowa Section 633.238 (2005)), the deceased spouse leaves a will which expressly devises the marital home to someone other than the surviving spouse. The surviving spouse may elect, contrary to the intent of the will, to live in the home for the remainder of his/her lifetime. This is called a "
life estate
In common law and statutory law, a life estate (or life tenancy) is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may ...
" and terminates immediately upon the surviving spouse's death.
The historical and social policy purposes of such statutes are to assure that the surviving spouse receives a statutorily set minimum amount of property from the decedent. Historically, these statutes were enacted to prevent the deceased spouse from leaving the survivor destitute, thereby shifting the burden of care to the social welfare system.
In New York, a surviving spouse is entitled to one-third of her deceased spouse's estate. The decedent's debts, administrative expenses and reasonable funeral expenses are paid prior to the calculation of the spousal elective share. The elective share is calculated through the "net estate". The net estate is inclusive of property that passed by the laws of intestacy, testamentary property, and testamentary substitutes, as enumerated in EPTL 5-1.1-A. New York's classification of testamentary substitutes that are included in the net estate make it challenging for a deceased spouse to disinherit their surviving spouse.
Notable wills
In
antiquity,
Julius Caesar
Gaius Julius Caesar (; ; 12 July 100 BC – 15 March 44 BC), was a Roman general and statesman. A member of the First Triumvirate, Caesar led the Roman armies in the Gallic Wars before defeating his political rival Pompey in a civil war, and ...
's
will
Will may refer to:
Common meanings
* Will and testament, instructions for the disposition of one's property after death
* Will (philosophy), or willpower
* Will (sociology)
* Will, volition (psychology)
* Will, a modal verb - see Shall and will
...
, which named his grand-nephew
Octavian
Caesar Augustus (born Gaius Octavius; 23 September 63 BC – 19 August AD 14), also known as Octavian, was the first Roman emperor; he reigned from 27 BC until his death in AD 14. He is known for being the founder of the Roman Pri ...
as his
adopted son and heir, funded and legitimized Octavian's rise to political power in the
late Republic; it provided him the resources necessary to win the
civil wars
A civil war or intrastate war is a war between organized groups within the same state (or country).
The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
against the "
Liberators" and
Antony and to establish the
Roman Empire
The Roman Empire ( la, Imperium Romanum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Republican period of ancient Rome. As a polity, it included large territorial holdings around the Mediterr ...
under the name
Augustus
Caesar Augustus (born Gaius Octavius; 23 September 63 BC – 19 August AD 14), also known as Octavian, was the first Roman emperor; he reigned from 27 BC until his death in AD 14. He is known for being the founder of the Roman Pri ...
. Antony's
officiating at the public reading of the will led to a riot and moved public opinion against Caesar's assassins. Octavian's illegal publication of Antony's sealed will was an important factor in removing his support within Rome, as it described his wish to be buried in
Alexandria
Alexandria ( or ; ar, ٱلْإِسْكَنْدَرِيَّةُ ; grc-gre, Αλεξάνδρεια, Alexándria) is the second largest city in Egypt, and the largest city on the Mediterranean coast. Founded in by Alexander the Great, Alexandria ...
beside the
Egyptian
Egyptian describes something of, from, or related to Egypt.
Egyptian or Egyptians may refer to:
Nations and ethnic groups
* Egyptians, a national group in North Africa
** Egyptian culture, a complex and stable culture with thousands of years of ...
queen
Cleopatra
Cleopatra VII Philopator ( grc-gre, Κλεοπάτρα Φιλοπάτωρ}, "Cleopatra the father-beloved"; 69 BC10 August 30 BC) was Queen of the Ptolemaic Kingdom of Egypt from 51 to 30 BC, and its last active ruler.She was also a ...
.
In the modern era, the ''
Thellusson v Woodford
''Thellusson v Woodford'' (1799) 4 Ves 227 is an English trusts law case. It was a lawsuit resulting from the will of Peter Thellusson, an English merchant (1737–1797).
Facts
Peter Thellusson directed the income of his property, consisting o ...
'' will case led to British legislation against the accumulation of money for later distribution and was fictionalized as ''
Jarndyce and Jarndyce
''Jarndyce and Jarndyce'' (or ''Jarndyce v Jarndyce'') is a fictional probate case in ''Bleak House'' (1852–53) by Charles Dickens, progressing in the English Court of Chancery. The case is a central plot device in the novel and has become a ...
'' in
Charles Dickens
Charles John Huffam Dickens (; 7 February 1812 – 9 June 1870) was an English writer and social critic. He created some of the world's best-known fictional characters and is regarded by many as the greatest novelist of the Victorian e ...
's ''
Bleak House
''Bleak House'' is a novel by Charles Dickens, first published as a 20-episode serial between March 1852 and September 1853. The novel has many characters and several sub-plots, and is told partly by the novel's heroine, Esther Summerson, and ...
''. The
Nobel Prize
The Nobel Prizes ( ; sv, Nobelpriset ; no, Nobelprisen ) are five separate prizes that, according to Alfred Nobel's will of 1895, are awarded to "those who, during the preceding year, have conferred the greatest benefit to humankind." Alfr ...
s were established by
Alfred Nobel
Alfred Bernhard Nobel ( , ; 21 October 1833 – 10 December 1896) was a Swedes, Swedish chemist, engineer, inventor, businessman, and Philanthropy, philanthropist. He is best known for having bequeathed his fortune to establish the Nobel ...
's will.
Charles Vance Millar
Charles Vance Millar (June 28, 1854 – October 31, 1926) was a Canadian lawyer and financier. He was the president and part-owner of the Toronto brewery of O'Keefe Brewery. He also owned racehorses, including the 1915 King's Plate–winning h ...
's will provoked the
Great Stork Derby
The Great Stork Derby was a contest held from 1926 to 1936. Female residents of Toronto, Ontario, Canada, competed to produce the most babies in order to qualify for an unusual bequest in a will.
Background
The race was the product of a scheme ...
, as he successfully bequeathed the bulk of his estate to the
Toronto
Toronto ( ; or ) is the capital city of the Canadian province of Ontario. With a recorded population of 2,794,356 in 2021, it is the most populous city in Canada and the fourth most populous city in North America. The city is the ancho ...
-area woman who had the greatest number of children in the ten years after his death. (The prize was divided among four women who had nine, with smaller payments made to women who had borne 10 children but lost some to miscarriage. Another woman who bore ten children was disqualified, for several were illegitimate.)
The longest known legal will is that of Englishwoman
Frederica Evelyn Stilwell Cook. Probated in 1925, it was 1,066 pages, and had to be bound in four volumes; her estate was worth $100,000. The shortest known legal wills are those of Bimla Rishi of
Delhi
Delhi, officially the National Capital Territory (NCT) of Delhi, is a city and a union territory of India containing New Delhi, the capital of India. Straddling the Yamuna river, primarily its western or right bank, Delhi shares borders w ...
,
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
("all to son") and Karl Tausch of
Hesse
Hesse (, , ) or Hessia (, ; german: Hessen ), officially the State of Hessen (german: links=no, Land Hessen), is a States of Germany, state in Germany. Its capital city is Wiesbaden, and the largest urban area is Frankfurt. Two other major histor ...
, Germany, ("all to wife") both containing only two words in the language they were written in (Hindi and Czech, respectively). The shortest will is of Shripad Krishnarao Vaidya of Nagpur, Maharashtra, consisting of five letters ("HEIR'S").
An unusual holographic will, accepted into probate as a valid one, came out of an accident. On 8 June 1948 in
Saskatchewan
Saskatchewan ( ; ) is a Provinces and territories of Canada, province in Western Canada, western Canada, bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, to the northeast by Nunavut, and on t ...
, Canada, a farmer named Cecil George Harris became trapped under his own
tractor
A tractor is an engineering vehicle specifically designed to deliver a high tractive effort (or torque) at slow speeds, for the purposes of hauling a trailer or machinery such as that used in agriculture, mining or construction. Most common ...
. Thinking he would not survive (though found alive later, he died of his injuries in hospital), Harris carved a will into the tractor's fender, which read:
The fender was probated and stood as his will. The fender is currently on display at the
law library
A law library is a special library used by law students, lawyers, judges and their law clerks, historians and other scholars of legal history in order to research the law. Law libraries are also used by people who draft or advocate for new l ...
of the
University of Saskatchewan College of Law
The College of Law at the University of Saskatchewan is the university's law school. Located in Saskatoon in the Canadian province of Saskatchewan, the College of Law was established in 1912 and is the oldest law school in Western Canada, a disti ...
.
Probate
After the testator has died, an application for
probate
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the sta ...
may be made in a
court with probate jurisdiction to determine the validity of the will or wills that the testator may have created, i.e., which will satisfy the legal requirements, and to appoint an
executor. In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit. In some jurisdictions, however, statutes may provide requirements for a "self-proving" will (must be met during the execution of the will), in which case witness testimony may be forgone during probate. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. In some jurisdictions, only an original will may be admitted to probate—even the most accurate photocopy will not suffice. Some jurisdictions will admit a copy of a will if the original was lost or accidentally destroyed and the validity of the copy can be proved to the satisfaction of the court.
If the will is ruled invalid in probate, then
inheritance
Inheritance is the practice of receiving private property, Title (property), titles, debts, entitlements, Privilege (law), privileges, rights, and Law of obligations, obligations upon the death of an individual. The rules of inheritance differ ...
will occur under the laws of
intestacy
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the esta ...
as if a will were never drafted.
See also
*
Ademption
* ''
Apertura tabularum''
*
Death and the Internet
A recent extension to the cultural relationship with death is the increasing number of people who die having created a large amount of digital content, such as social media profiles, that will remain after death. This may result in concern and co ...
, including password vaults
*
Estate planning
Estate planning is the process of anticipating and arranging, during a person's life, for the management and disposal of that person's estate during the person's life, in the event the person becomes incapacitated and after death. The planning inc ...
*
Ethical will
An ethical will (Hebrew: ) is a document that passes ethical values from one generation to the next. Rabbis and Jewish laypeople have continued to write ethical wills during the nineteenth and twentieth centuries. (Riemer) In recent years, the prac ...
*
Forced heirship
Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed and which tends to guarantee an inheritance for family of the deceased.
In forced heirship, the estate of a deceased (''de cuju ...
*
Inheritance
Inheritance is the practice of receiving private property, Title (property), titles, debts, entitlements, Privilege (law), privileges, rights, and Law of obligations, obligations upon the death of an individual. The rules of inheritance differ ...
*
Legal history of wills
Wills have a lengthy history.
Ancient Greece
The Ancient Greek practice concerning wills was not the same in all places; some states permitted men to dispose of their estates, others wholly deprived them of that privilege. According to Plutarc ...
*
Trust law
A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "settl ...
**
Henson trust
**
Totten trust
A Totten trust (also referred to as a "Payable on Death" account) is a form of trust in the United States in which one party (the ''settlor'' or "grantor" of the trust) places money in a bank account or security with instructions that upon the se ...
*
Will Aid
Will Aid is a British charity will-writing scheme designed to reinforce the need for everyone to have a professionally drawn-up Will (law), will and to raise funds for their partner charities. Will Aid was founded in 1988 following the example set ...
*
Will contest
A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will) or that the will is otherwis ...
References
Books
* ''Administration of Wills, Trusts, and Estates'' by Gordon W. Brown, Delmar Cengage Learning ()
External links
Citizens Advice Bureau (UK)Prerogative Court of Canterbury wills (1384–1858) at the National Archives (pay per view)Prerogative Court of Canterbury wills on Ancestry.co.uk (subscription)Download the wills of famous people(UK National Archives)
William Shakespeare's WillThomas Jefferson's Last WillJane Austen's Will
{{DEFAULTSORT:Will (Law)
Works about history