Will (law)

Scales of justice
Wills, trusts
and estates
Part of the common law series
Wills
Wills (legal history)
Joint wills and mutual wills
Will contract · Codicil
Holographic will · Oral will
Sections
Attestation clause
Residuary clause
Incorporation by reference
Contest
Testamentary capacity
Undue influence
Insane delusion · Fraud
Property disposition
Lapse and anti-lapse
Ademption · Abatement
Acts of
independent significance
Elective share
Pretermitted heir
Trusts
Express · Constructive
Resulting
Common types
Bare · Discretionary
Accumulation and Maintenance
Interest in possession
Charitable · Purpose · Incentive
Other types
Protective · Spendthrift
Life insurance · Remainder
Life interest
Reversionary interest
Honorary · Asset-protection
Special needs
(Supplemental Needs)
Governing doctrines
Pour-over will
Cy-près doctrine
Estate administration
Intestacy · Testator · Probate
Power of appointment
Simultaneous death · Slayer rule
Disclaimer of interest · Inheritance tax
Related topics
Living will
(advance directives)
Totten trust
Other common law areas
Contract · Tort · Property
Criminal law · Evidence

In common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his or her property or family after death. For the devolution of property not disposed of by will, see inheritance and intestacy. In the strictest sense, a "will" is a general term, while "testament" applies only to dispositions of personal property (this distinction is seldom observed). A will may also create a trust that is effective only after the death of the testator. Any trust created in a Will is generally referred to as a "testamentary trust".

Contents

Requirements for the creation of a will

Any person over the age of majority and of sound mind can draft his or her own will without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but every will must contain the following:

After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfied 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. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.

There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

Some states recognize a holographic will, made out entirely in the testator's own hand (or, nowadays, typed in a word processor). Contrary to popular opinion, the unique aspect of a holographic will is less that it is written by the testator and more that it need not be witnessed. A minority of states even recognize the validity of nuncupative wills, which are expressed orally. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service.

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 England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them at the court's discretion.

It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands. This is not a consideration in English law, which provides that all such expenses will fall on the estate in any case.

Revocation

Alfred Nobel's will where he founds the Nobel prize

Methods and effect

The intentional physical destruction of a will by the testator will revoke it. This could be accomplished by the testator deliberately burning or tearing the physical document itself, or even by striking out the signature. Most jurisdictions allow partial revocation 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 is physically incapacitated), if this is done in his 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 his or her 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, however, because normally a court will still attempt to read the wills together to the extent they are consistent.

In some jurisdictions, the complete revocation of a will automatically revives the next most recent will, while others hold that revocation leaves the testator with no will so that his or her heirs will instead inherit by intestate succession.

In England and Wales, marriage will automatically revoke a will as it is presumed that upon marriage, a testator will want to review the will. A statement in a will that it is made in contemplation of forthcoming marriage to a named person will override this. Divorce, conversely, will not revoke a will, but 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 that this is the case, a copy will or draft will may be admitted to probate.

Dependent relative revocation

Many jurisdictions exercise an equitable doctrine known as dependent relative revocation. 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 his old will under the (mistaken) belief that the new will would be valid. However, for some reason the new will is not valid and a court may apply the doctrine to reinstate and probate the old will, as 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 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 his 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."

Election under the will

Also referred to as "electing to take against the will." In the United States, many states have probate statutes which 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 (see Code of Iowa Section 633.238 (2005)), the deceased spouse leaves a will which expressly gifts 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" 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.

Wills in history

Charles Vance Millar's will was notorious for offering the bulk of his estate to the Toronto woman who had the greatest number of children in the ten years after his death (the Great Stork Derby). Attempts to invalidate it by his would-be heirs were unsuccessful, and the bulk of Millar's fortune eventually went to four women. Another famous case, Estate of Kidd involved a will found on a deceased Arizona prospector who left his entire $250,000 estate "for research or some scientific proof of a soul of the human body which leaves at death. I think in time there can be a photograph of a soul leaving the human at death."

The Thellusson Will Case was fictionalised by Charles Dickens as Jarndyce and Jarndyce in Bleak House, and led to Parliament legislating against such accumulation of money for later distribution.

Though most people are aware that they need a will, as many as 66% of Americans, according to Consumer Reports, don't have one. Among the notables who died without either a valid will or no will at all are Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, James A. Garfield, Howard Hughes, Martin Luther King, Jr., Rocky Marciano, Tupac Shakur, Kurt Cobain, Buddy Holly, Lenny Bruce, Billie Holiday, Marvin Gaye, Sam Cooke, Cass Elliot, Sonny Bono, Tiny Tim, Karl Marx and Pablo Picasso.

The shortest known legal will in history is that of Bimla Rishi of Delhi. His will, dated February 9, 1995, translated from Hindi as "all to son". The January 19, 1967 will of Karl Tausch consisted solely of the phrase vše ženě "all to wife".

Freedom of disposition

The conception of the freedom of disposition by will, familiar as it is in modern England and the United States, both generally considered common law 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".

Advocates for gays and lesbians have pointed to the inheritance rights of spouses as desirable for same-sex couples as well, through same-sex marriage or civil unions. Opponents of such advocacy rebut this claim by pointing to the ability of same-sex couples to disperse their assets by will. Historically, courts have been more willing to strike down wills leaving property to a same-sex partner for reasons such as incapacity or undue influence. See, for example In Re Kaufmann's Will 20 A.D.2d 464, 247 N.Y.S.2d 664 (1964), aff'd, 15 N.Y.2d 825, 257 N.Y.S.2d 941, 205 N.E.2d 864 (1965)

Terminology used in wills

See also

Notes

  1. ↑ Laws on holographic wills by State

References

External links