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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.
A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor. The one authorized to act is the agent, attorney, or in some common law jurisdictions, the attorney-in-fact.
Wills have a lengthy history.
The Regency Acts are Acts of the Parliament of the United Kingdom passed at various times, to provide a regent in the event of the reigning monarch being incapacitated or a minor. Prior to 1937, Regency Acts were passed only when necessary to deal with a specific situation. In 1937, the Regency Act 1937 made general provision for a regent, and established the office of Counsellor of State, a number of whom would act on the monarch's behalf when the monarch was temporarily absent from the realm or experiencing an illness that did not amount to legal incapacity. This Act, as modified by the Regency Acts of 1943 and 1953, forms the main law relating to regency in the United Kingdom today.
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.
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 of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
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.
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.
Insane delusion is the legal term of art in the common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence to the contrary. A will made by a testator suffering from an insane delusion that affects the provisions made in the will may fail in whole or in part. Only the portion of the will caused by the insane delusion fails, including potentially the entire will. Will contests often involve claims that the testator was suffering from an insane delusion.
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.
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.
The Wills Act 1963 is an Act of the Parliament of the United Kingdom that repealed the Wills Act 1861 and brought United Kingdom law in line with the suggestions of the Ninth Hague Conference on Private International Law, completed on 5 October 1961. Along with the Wills Act 1837, the 1963 Act is the principal Act dealing with wills in the United Kingdom. The 1963 Act allows a will to be considered "properly executed" if it was executed in line with local law in the state where it was executed, the state where the testator lived or the state the testator was a citizen of, rather than applying United Kingdom law to all wills.
Inheritance law in Canada is constitutionally a provincial matter. Therefore, the laws governing inheritance in Canada is legislated by each individual province.
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 Spies v Smith, an important case in the South African law of succession, the testator was mentally retarded and epileptic, and had appointed the two daughters of his step-mother as his sole heirs. When the testator's father died, he went to live with his uncle. Thereafter, the testator made a new will appointing the sons of his uncle as his heirs.
In Ex Parte Estate Davies, an important case in South African succession law, the testator bequeathed £2000 in his will to a person who was not named in the will itself, but on a document which was in a sealed envelope given to his attorney. This document was not signed by witnesses.
In Kidwell v The Master, an important case in the South African law of succession, the testator had signed right at the bottom of the will; there was about 17 centimetres (6.7 in) between the end of the will and the testator's signature. The question before the court was where the end of the will was. The court held that the will was invalid as it did not comply with section 2(1)(a)(i) of the Wills Act. The decision has been criticised as overly formalistic by some commentators, who believe the overriding criteria for the courts should be to give effect to the wishes of the testator, and this case did not do this over something seemingly insignificant.
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.
The 1778 case of Honora Jenkins's last will and testament is a case in English law dealing with the witnessing of a testator's will. In this case, the testatrix, Honora Jenkins, visited her solicitors' office to sign her will, but it was later recorded how "being asthmatical and the office very hot, she retired to her carriage to execute the will", which was outside the office window.
References
- Geldenhuys v Borman NO and Others 1990 (1) SA 161 (E).
