Abatement of debts and legacies is a common law doctrine of wills that holds that when the equitable assets of a deceased person are not sufficient to satisfy fully all the creditors, their debts must abate proportionately, and they must accept a dividend.
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 distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Wills have a lengthy history.
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 state of residence of the deceased at time of death in the absence of a legal will.
Estate planning is the process of anticipating and arranging for the management and disposal of a person's estate during the person's life in preparation for a person's future incapacity or death. The planning includes the bequest of assets to heirs, loved ones, and/or charity, and may include minimizing gift, estate, and generation-skipping transfer taxes. Estate planning includes planning for incapacity, reducing or eliminating uncertainties over the administration of a probate, and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can only be determined by the specific goals of the estate owner, and may be as simple or complex as the owner's wishes and needs directs. Guardians are often designated for minor children and beneficiaries with incapacity.
In property law, a concurrent estate or co-tenancy is any of various ways in which property is owned by more than one person at a time. If more than one person owns the same property, they are commonly referred to as co-owners. Legal terminology for co-owners of real estate is either co-tenants or joint tenants, with the latter phrase signifying a right of survivorship. Most common law jurisdictions recognize tenancies in common and joint tenancies.
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 or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
Lapse and anti-lapse are complementary concepts under the US law of wills, which address the disposition of property that is willed to someone who dies before the testator.
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 simply residue.
The doctrine of acts of independent significance at common law permits a testator to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will.
Ademption by satisfaction, also known as satisfaction of legacies, is a common law doctrine that determines the disposition of property under a will when the testator has made lifetime gifts to beneficiaries named in the will. Under the doctrine, a gift that the maker of the will gives during his lifetime to a named beneficiary of the will is treated as an advance payment of that beneficiary's inheritance. If the probate court determines that the testator intended the lifetime gift to satisfy a bequest under the will, the amount of the lifetime gift is deducted from the amount that the beneficiary would have received under the will.
A will contract is a term used in the law of wills describing a contract to exchange a current performance for a future bequest. In such an agreement, one party will provide some performance in exchange for a promise by the other party to make a specific bequest to the promisee party in the testator's will. Most jurisdictions recognize such contracts as valid, although a few hold them as void against public policy. Some jurisdictions will not recognize an oral contract for such a purpose, requiring instead that the contract be executed in writing and signed by both parties. Some jurisdictions require full compliance with the Statute of Wills to be effective, i.e., in writing and signed in the presence of two witnesses.
Historically, a bequest is personal property given by will and a devise is real property given by will. Today, the two words are often used interchangeably.
A legatee, in the law of wills, is any individual or organization bequeathed any portion of a testator's estate.
Howe v Earl of Dartmouth (1802) 7 Ves 137 is an English trusts law case. It laid down the rule of equity in relation to the duties of a trustee in relation to a trust fund where there are successive interests in relation to the trust fund, and seeks to strike a fair balance between the rights of the life tenant and the remainderman. It is one of a number of highly technical common law rules which causes considerable angst where wills and trusts have not been professionally prepared.
The Wills Act 1837 is an Act of the Parliament of the United Kingdom that confirms the power of every adult to dispose of their real and personal property, whether they are the outright owner or a beneficiary under a trust, by will on their death (s.3). The act extends to all testamentary dispositions or gifts, where "a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." As of 2012, much of it remains in force in England and Wales.
A reversion in property law is a future interest that is retained by the grantor after the conveyance of an estate of a lesser quantum that he has. Once the lesser estate comes to an end, the property automatically reverts back to the grantor.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
In Barrow v The Master, an important case in South African succession law, the testator had convinced his son to leave his job and take over the management and farming operations on the farm “Longridge” from him. To assist him, the testator bought another farm “Meldene” for his son to live on while managing Longridge. Because the son was finding it inconvenient and difficult to manage the farming operations on Longridge while living at Meldene the testator decided to sell 'Longridge' for a net price of £10,000 and undertook to give his son the sum of £262 which he calculated would be the amount of the selling agent's commission. The farm was sold and another smaller farm called “Patchwood” was purchased. In his will the testator had bequeathed Longridge to his two sons in equal shares. Thus when the testator died, his son claimed for his half share in the farm Patchwood. The claim to Patchwood is founded on a promise by the testator during his lifetime to donate to his son a farm to the value of at least £5,000. Alternatively, the son claimed that the bequest of a half-share of Longridge had not been adeemed. On the first argument, the court held that the testator had settled his promise by purchasing the farm Meldene for his son. Furthermore, the court held that the purchase of Patchwood was effected to replace the facilities for farming that his son would lose by the sale of Longridge, not that the farm was actually for him. On the second argument, the court rejected the contention that the testator felt obliged to sell the farm because his son was finding it difficult to manage it and it was thus not voluntary. The court held that involuntary alienations only arise out of necessity such as pressing debts. Thus the alienation was voluntary and the bequest had adeemed.
Testate succession exists under the law of succession in South Africa.
