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A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, see inheritance and intestacy.
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."
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.
An estate, in common law, is the net worth of a person at any point in time alive or dead. It is the sum of a person's assets – legal rights, interests and entitlements to property of any kind – less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person.
Though it has at times been thought that a "will" was historically limited to real property while "testament" applies only to dispositions of 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 that is effective only after the death of the testator.
Throughout most of the world, disposal of an estate has been a matter of social custom. According to Plutarch, the written will was invented by Solon. Originally, it was a device intended solely for men who died without an heir.
Plutarch, later named, upon becoming a Roman citizen, Lucius Mestrius Plutarchus, was a Greek biographer and essayist, known primarily for his Parallel Lives and Moralia. He is classified as a Middle Platonist. Plutarch's surviving works were written in Greek, but intended for both Greek and Roman readers.
Solon was an Athenian statesman, lawmaker and poet. He is remembered particularly for his efforts to legislate against political, economic and moral decline in archaic Athens. His reforms failed in the short-term, yet he is often credited with having laid the foundations for Athenian democracy. He wrote poetry for pleasure, as patriotic propaganda, and in defence of his constitutional reforms.
The English phrase "will and testament" is derived from a period in English law when Old English and Law French were used side by side for maximum clarity. Other such legal doublets include "breaking and entering" and "peace and quiet".
Law French 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, beginning with the Norman Conquest of England in 1066. Its use continued for several centuries in the courts of England and Wales and Ireland. Although Law French as a narrative legal language is obsolete, many individual Law French terms continue to be used by lawyers and judges in common law jurisdictions.
A legal doublet is a standardized phrase used frequently in English legal language consisting of two or more words that are near synonyms. The origin of the doubling—and sometimes even tripling—often lies in the transition from use of one language for legal purposes to use of another for the same purposes, as from a Germanic term to a Romance term or, within the Romance subfamily, from a Latin term to a Law French term. To ensure understanding, words of Germanic origin were often paired with words having equivalent or near-equivalent meanings in Latin or, later, Law French, and words of Latin origin were often paired with their Law French cognates or outright descendants. Such phrases can often be pleonasms and Siamese twins. In other cases, the two components did not arise through such synonym annotation but rather referred to two differentiable ideas whose differentiation is subtle, appreciable only to lawyers, long since obsolete, or a combination of those. For example, ways and means, referring to methods and resources respectively, are differentiable, in the same way that tools and materials, or equipment and funds, are differentiable—but the difference between them is often practically irrelevant to the contexts in which the Siamese twin ways and means is used today in non-legal contexts as a mere cliché where one word would do, and because each of the words can practically mean "methods", the second can seem redundant in the clichéd, non-legal instances.
Burglary, also called breaking and entering and sometimes housebreaking, is an unlawful entry into a building or other location for the purposes of committing an offence. Usually that offence is theft, but most jurisdictions include others within the ambit of burglary. To engage in the act of burglary is to burgle in British English, a term back-formed from the word burglar, or to burglarize in American English.
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".
In law, common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.
Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives precedential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions.
Forced heirship is a form of testate partible inheritance whereby the estate of a deceased is separated into (1) an indefeasible portion, the forced estate, passing to the deceased's next-of-kin (conjunctissimi), and (2) a discretionary portion, or free estate, to be freely disposed of by will. Forced heirship is generally a feature of civil-law legal systems which do not recognize total freedom of testation. Normally, the deceased's estate is in-gathered and wound up without discharging liabilities, which means accepting inheritance includes accepting the liabilities attached to inherited property. The forced estate is divided into shares which include the share of issue and the spousal share. This provides a minimum protection that cannot be defeated by will. The free estate, on the other hand, is at the discretion of a testator to be distributed by will on death to whomever he or she chooses. Takers in the forced estate are known as forced heirs.
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, however, it was observed that "[e]ven 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 courts being more willing to strike down wills leaving property to a same-sex partner on such grounds as incapacity or undue influence.
Same-sex marriage is the marriage of two people of the same sex or gender, entered into in a civil or religious ceremony. There are records of same-sex marriage dating back to the first century though there is no legal provision in Roman Law, and it was banned in the Roman Empire in the fourth. In the modern era, same-sex marriage started being legalized at the beginning of the 21st century. Today, it is available in 28 countries.
A civil union 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 most or all of the rights of marriage except the title itself. Around the world, developed democracies began establishing civil unions in the late 1990s, often developing them from less formal domestic partnerships, which grant only some of the rights of marriage. In the majority of countries that established these unions in laws, they have since been either supplemented or replaced by same-sex marriage. Civil unions are viewed by LGBT rights campaigners as a "first step" towards establishing same-sex marriage, as civil unions are viewed by supporters of LGBT rights as a "separate but equal" or "second class" status. While civil unions are often established for both opposite-sex couples and same-sex couples, in a number of countries they are available to same-sex couples only.
A court is any person or institution with authority to judge or adjudicate, 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 with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute resolution, and it is generally understood that all people have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defense before a court.
Types of wills generally include:
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 or Mystic will.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.
Any person over the age of majority and having "testamentary capacity" (i.e., generally, being of sound mind) can make a will, with or without the aid of a lawyer. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:
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—which may have the effect in law of disinheriting the witness regardless of the provisions of the will.
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 such an attempt can be defeated by a court order if it leaves the surviving spouse (or other entitled dependent) without "reasonable financial provision".
In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will, [ citation needed ]was concluded in the context of UNIDROIT. 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 which became a party to the Convention. These are known as "international wills". Belgium, Bosnia-Herzegovina, Canada (for 9 provinces, not Quebec), Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal 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 US 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 jurisdictional and choice of law issues that may arise during probate.
Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or tearing the physical document itself, or by striking out the signature. 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. However, 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 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.
In England and Wales, marriage will automatically revoke a will, for 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 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 that this is the case, a copy will or draft will may be admitted to probate.
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.
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 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" 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.
In antiquity, Julius Caesar's will, which named his grand-nephew Octavian 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 against the "Liberators" and Antony and to establish the Roman Empire under the name Augustus. 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 beside the Egyptian queen Cleopatra.
In the modern era, the Thellusson v Woodford will case led to British legislation against the accumulation of money for later distribution and was fictionalized as Jarndyce and Jarndyce in Charles Dickens's Bleak House . The Nobel Prizes were established by Alfred Nobel's will. Charles Vance Millar's will provoked the Great Stork Derby, as he successfully bequeathed the bulk of his estate to the Toronto-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, India ("all to son") and Karl Tausch of Hesse, 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 a tragic accident. On 8 June 1948 in Saskatchewan, Canada, a farmer named Cecil George Harris became trapped under his own tractor. 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:
In case I die in this mess I leave all to the wife. Cecil Geo. Harris.
The fender was probated and stood as his will. The fender is currently on display at the law library of the University of Saskatchewan College of Law.
After the testator has died, an application for probate 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.[ citation needed ] 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 will occur under the laws of intestacy as if a will were never drafted.
A holograph is a document written entirely in the handwriting of the person whose signature it bears. Some countries or local jurisdictions within certain countries give legal standing to specific types of holographic documents, generally waiving requirements that they be witnessed. One of the most important types of such documents are holographic last wills.
Intestacy is the condition of the estate of a person who dies without having made 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 estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.
The Statute of Frauds (1677) is an Act of the Parliament of England. It required that certain types of contracts, wills, and grants, and assignment or surrender of leases or interest in real property must be in writing and signed to avoid fraud on the court by perjury and subornation of perjury. It also required that documents of the courts be signed and dated.
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 [or real property] of the deceased at time of death in the absence of a legal will.
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 and at and after death, while minimizing gift, estate, generation skipping transfer, and income tax. Estate planning includes planning for incapacity as well as a process of 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 be determined by the specific goals of the client, and may be as simple or complex as the client's needs dictate. Guardians are often designated for minor children and beneficiaries in incapacity.
A holographic will is a will and testament that has been entirely handwritten and signed by the testator. Traditionally, a will must 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.
A pretermitted heir is a term used in the law of property to describe 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.
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.
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.
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.
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 confused with mirror wills which means two separate, identical wills, which may or may not also be mutual wills.
A testamentary trust is a trust which arises upon the death of the testator, and which is specified in his or her will. A will may contain more than one testamentary trust, and may address all or any portion of the estate.
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 probate court is a court that has competence in a jurisdiction to deal with matters of probate and the administration of estates. In some jurisdictions, such courts may be referred to as Orphans' Courts, or courts of ordinary. In some jurisdictions probate court functions are performed by a chancery court or another court of equity, or as a part or division of another court.
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.
Wills, Estates And Succession Act of British Columbia (WESA) is a provincial statute that governs the law of inheritance in British Columbia, Canada. The bill was introduced in Legislative Assembly of British Columbia on September 24, 2009 and received royal consent on October 29, 2009. WESA amalgamated and in some cases replaced five earlier pieces of legislation. These include: Estate Administration Act RSBC 1996, c. 122,Probate Recognition RSBC 1996, c. 376, Wills Act RSBC 1996, c. 489, Wills Variation Act RSBC 1996, c.Law and Equity Act RSBC 1996, c. 253, s. 46, 49, 50 & 51 and Survivorship and Presumption of Death Act RSBC 1996, c. 444. WESA has given the court curative discretion under Part 5, and in Section 60 allows the court to invalidate and supplant testamentary instruments that are deemed by the court defective as regards proper maintenance and support of the will-maker's spouse or children.
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