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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.
In English common law, fee tail or entail is a form of trust established by deed or settlement which restricts the sale or inheritance of an estate in real property and prevents the property from being sold, devised by will, or otherwise alienated by the tenant-in-possession, and instead causes it to pass automatically by operation of law to an heir determined by the settlement deed. The term fee tail is from Medieval Latin feodum talliatum, which means "cut(-short) fee" and is in contrast to "fee simple" where no such restriction exists and where the possessor has an absolute title in the property which he can bequeath or otherwise dispose of as he wishes. Equivalent legal concepts exist or formerly existed in many other European countries and elsewhere.
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 the law of property, a pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not include the person in the testator's will. Omission may occur because the testator did not know of the omitted person at the time the will was written.
Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to determine what happens when property bequeathed under a will is no longer in the testator's estate at the time of the testator's death. For a devise (bequest) of a specific item of property, such property is considered adeemed, and the gift fails. For example, if a will bequeathed the testator's car to a specific beneficiary, but the testator owned no car at the time of his or her death, the gift would be adeemed and the aforementioned beneficiary would receive no gift at all.
A power of appointment is a term most frequently used in the law of wills to describe the ability of the testator to select a person who will be given the authority to dispose of certain property under the will. Although any person can exercise this power at any time during their life, its use is rare outside of a will. The power is divided into two broad categories: general powers of appointment and special powers of appointment. The holder of a power of appointment differs from the trustee of a trust in that the former has no obligation to manage the property for the generation of income, but need only distribute it.
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.
Saunders v Vautier[1841] EWHC J82, (1841) 4 Beav 115 is a leading English trusts law case. It laid down the rule of equity which provides that, if all of the beneficiaries in the trust are of adult age and under no disability, the beneficiaries may require the trustee to transfer the legal estate to them and thereby terminate the trust. The rule has been repeatedly affirmed in common law jurisdictions, and is commonly referred to as "the rule in Saunders v Vautier" for shorthand.
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.
Price v. Watkins, 1 U.S. 8 is a decision of the Supreme Court of Pennsylvania, issued when Pennsylvania was still a British colony. It is among the first decisions that appear in the first volume of United States Reports.
Dillwyn v Llewelyn [1862] is an 'English' land, probate and contract law case which established an example of proprietary estoppel at the testator's wish overturning his last Will and Testament; the case concerned land in Wales demonstrating the united jurisdiction of England and Wales.
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.
Re Tuck's Settlement Trusts[1977] EWCA Civ 11 is a leading English trusts law case, concerning the certainty of trusts.
Re Barlow's Will Trusts [1979] 1 WLR 278 is an English trusts law case, concerning certainty of the words "family" and "friends" in a will.
The Bennet family is a fictional family created by the English novelist Jane Austen, in her 1813 novel, Pride and Prejudice. The family consists of Mr. and Mrs. Bennet, and their five daughters: Jane, Mary, Catherine, Lydia, and Elizabeth, the novel's protagonist
In Van Zyl v Esterhuyse, an important case in the law of succession in South Africa, the applicant applied for the rectification of a joint will executed by herself and her deceased husband. The will appointed her as the sole heir subject to the conditions
Ex parte Estate late McDonald 1945 NPD 348, sometimes called Ex Parte McDonald was an important case in the South African law of succession, in which the testator bequeathed his entire estate to a trust subject to the granting of a usufruct in favour of his wife, so long as she remained unmarried, in which she received the full use and enjoyment of the income of his estate. Her life interest was subject to the condition that she should provide for, maintain and educate the children during their respective minorities.
Testate succession exists under the law of succession in South Africa.
References
- Estate Orpen v Estate Atkinson 1966 (4) SA 589 (A).
