Will and testament

Last updated

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.

Contents

Though it has at times been thought that a "will" historically applied only to real property while "testament" applied only to 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. [1] 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.

History

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.[ citation needed ] Originally, it was a device intended solely for men who died without an heir.

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". [2]

Freedom of disposition

Last will and testament of Tennessee Williams Tennessee williams will.jpg
Last will and testament of Tennessee Williams

The concept 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. [3] :654 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, 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", [4] with courts being more willing to strike down wills leaving property to a same-sex partner on such grounds as incapacity or undue influence. [5] [6]

Types of wills

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 testament. [8] 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.

Terminology

Requirements for creation

Muhammad Ali Jinnah's will, excerpt Quaid-i-Azam's Will.JPG
Muhammad Ali Jinnah's will, excerpt

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.

Content of the will

Required content varies, depending on the jurisdiction, but generally includes the following:

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. [10] 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".

Role of lawyers

There is no legal requirement that a will be drawn up by a lawyer, and some people may resist hiring a lawyer to draft a will. [11] People may draft a will with the assistance of a lawyer, use a software product [12] or will form, or write their wishes entirely on their own. Some lawyers offer educational classes for people who want to write their own will. [13]

When obtained from a lawyer, a will may come as part of an estate planning package package that includes other instruments, such as a living trust. [14] A will that is drafted by a lawyer avoid possible technical mistakes that a layperson might make that could potentially invalidate part or all of a will. [15] While wills prepared by a lawyer may seem similar to each other, lawyers can customize the language of wills to meet the needs of specific clients. [16]

International wills

In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will, [17] 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 that became a party to the Convention. These are known as "international wills". It is in force in Australia, Belgium, Bosnia-Herzegovina, Canada (in 9 provinces, not Quebec), Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia. The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified. [18] International wills are only valid where the convention applies. Although the U.S. has not ratified on behalf of any state, the Uniform law has been enacted in 23 states and the District of Columbia.[ citation needed ]

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. [18] [19] In some nations, multiple wills may be useful to reduce or avoid taxes upon the estate and its assets. [20] 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. [19]

Revocation

Methods and effect

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. 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.

Dependent relative revocation

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.

Election against the will

Also referred to as "electing to take against the will". In the United States, many states have probate statutes that 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.

Notable wills

Alfred Nobel's will. Alfred Nobels will-November 25th, 1895.jpg
Alfred Nobel's will.

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). [21] The shortest will is of Shripad Krishnarao Vaidya of Nagpur, Maharashtra, consisting of five letters ("HEIR'S"). [22] [23]

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. [24]

Probate

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. [25]

If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.

See also

Related Research Articles

Intestacy Condition of the estate of a person who dies without having made a valid will or other binding declaration

Intestacy is the condition of the estate of a person who dies without having in force 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.

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.

Statute of Frauds United Kingdom legislation

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.

Legal history of wills

Wills have a lengthy history.

Probate Proving of a will

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

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 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.

Holographic will will and testament that has been entirely handwritten and signed by the testator

A holographic will, or olographic testement, is a will and testament which is a holographic document, i.e., it has been entirely handwritten and signed by the testator. Traditionally, 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:

Testator

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."

Will contest

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.

Pretermitted heir

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.

Lapse and anti-lapse

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.

Testamentary capacity

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.

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.

Testamentary trust

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.

Statute of Wills United Kingdom legislation

The Statute of Wills was an Act of the Parliament of England. It made it possible, for the first time in post-Conquest English history, for landholders to determine who would inherit their land upon their death by permitting devise by will. Prior to the enactment of this statute, land could be passed by descent only if and when the landholder had competent living relatives who survived him, and it was subject to the rules of primogeniture. When a landholder died without any living relatives, his land would escheat to the Crown. The statute was something of a political compromise between Henry VIII and English landowners, who were growing increasingly frustrated with primogeniture and royal control of land.

Wills Act 1837 United Kingdom legislation

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.

In English law, secret trusts are a class of trust defined as an arrangement between a testator and a trustee, made to come into force after death, that aims to benefit a person without having been written in a formal will. The property is given to the trustee in the will, and he would then be expected to pass it on to the real beneficiary. For these to be valid, the person seeking to enforce the trust must prove that the testator intended to form a trust, that this intention was communicated to the trustee, and that the trustee accepted his office. There are two types of secret trust — fully secret and half-secret. A fully secret trust is one with no mention in the will whatsoever. In the case of a half-secret trust, the face of the will names the trustee as trustee, but does not give the trust's terms, including the beneficiary. The most important difference lies in communication of the trust: the terms of a half-secret trust must be communicated to the trustee before the execution of the will, whereas in the case of a fully secret trust the terms may be communicated after the execution of the will, as long as this is before the testator's death.

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.

References

  1. Wills, Trusts, and Estates (Aspen, 7th Ed., 2005)
  2. Freedman, Adam (2013). The party of the first part the curious world of legalese. New York: Henry Holt and Company. ISBN   1466822570.
  3. Wikisource-logo.svg One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Will". Encyclopædia Britannica . 28 (11th ed.). Cambridge University Press. pp. 654–658.
  4. Eugene F. Scoles, Problems and Materials on Decedents' Estates and Trusts (2000), p. 39.
  5. Chuck Stewart, Homosexuality and the Law: A Dictionary (2001), p. 310.
  6. See also, 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).
  7. Repository Citation: Contracts Not to Revoke Joint or Mutual Wills, 15 William & Mary Law Review 144 (1973), https://scholarship.law.wm.edu/wmlr/vol15/iss1/7
  8. Louisiana Civil Code Article 1575 http://legis.la.gov/lss/lss.asp?doc=108900/
  9. https://www.merriam-webster.com/dictionary/testatrix
  10. For example, if the child attempted to kill the parent.
  11. "Steps to Create an Estate Plan - Consumer Reports". Consumer Reports. November 2013. Retrieved 2020-04-21.
  12. Hartman, Rachel (2019-11-06). "The Best Online Will Making Programs". US News & World Report.
  13. Ewoldt, John (2016-05-11). "Prince's estate highlights the value of creating a will". Minneapolis Star Tribune. Archived from the original on 2016-05-11. Retrieved 2020-04-21.
  14. Sullivan, Paul (2018-09-07). "Making Wills Easier and Cheaper With Do-It-Yourself Options". The New York Times. ISSN   0362-4331 . Retrieved 2020-04-21.
  15. Beck, Laura W.; Bartlett, Stefania L.; Nerney, Andrew M. "Wills: Connecticut" (PDF). Cummings & Lockwood, LLC. Practical Law. Retrieved 23 April 2020.
  16. Hill, Catey (2015-11-27). "Don't buy legal documents online without reading this story". Market Watch. Retrieved 2020-04-21.
  17. "Convention providing a Uniform Law on the Form of an International Will (Washington, D.C., 1973)". www.unidroit.org. 2013-11-07. Retrieved 2020-02-22.
  18. 1 2 Eskin, Vicki; Driscoll, Bryan. "Estate Planning with Foreign Property". American BAR Association. Retrieved 18 June 2014.
  19. 1 2 Fry, Barry (2012). "Cross Border Estate Issues" (PDF). Advoc. Retrieved 7 June 2017.
  20. Popovic-Montag, Suzana; Hull, Ian M. (2 Oct 2015). "The Risks and Rewards of Multiple Wills". HuffPost Canada Business. Retrieved 7 June 2017.
  21. "Thelongestlistofthelongeststuffatthelongestdomainnameatlonglast.com". thelongestlistofthelongeststuffatthelongestdomainnameatlonglast.com.
  22. TARUN BHARAT (www.tarunbharat.net) Nagpur, Saturday, 28 April 2012
  23. PUNNYA NAGARI (Marathi language daily published at Nagpur) Friday 8 June 2012
  24. On Campus News, January 23, 2009: The Last Will and Testament of Cecil George Harris
  25. "NRS: CHAPTER 136 - PROBATE OF WILLS AND PETITIONS FOR LETTERS". www.leg.state.nv.us.

Books