In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his or her property or family after death. Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society In Common law legal systems a trust is an arrangement whereby Property (including real tangible and intangible is managed by one person (or persons or organizations In English law, Administration of an estate on death arises if the deceased is legally Intestate. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Wills in the Ancient World The will if not purely Roman in origin at least owes to Roman law its complete development a development which in most European countries 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 A will contract is a term used in the Law of wills describing a Contract to exchange a current performance for a future bequest A codicil is a document that amends rather than replaces a previously executed will. A holographic will is a will and testament that has been entirely handwritten and signed by the Testator. An oral or nuncupative will is a will that has been delivered Orally to the witnesses In the statutory law of wills and trusts in the United States, an attestation clause is a clause that is typically appended to a will often just 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 Incorporation by reference is a doctrine of the Common law of wills by which a person may state in his will that certain property is to be disposed of by a separate 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 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 a valid will Undue influence (as a term in Jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person An 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 In the broadest sense a fraud is a Deception made for personal gain or to damage another individual Lapse and anti-lapse are complementary concepts under the Law of wills, which address the disposition of property that is willed to someone who dies before Ademption is a term used in the Law of wills to determine what happens when property bequeathed under a will is no longer in the Testator 's estate when 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 The doctrine of acts of independent significance, in the Common law of wills, permits the Testator to effectively change the disposition of her property An elective share is a term used in American law relating to Inheritance, which describes a proportion of an estate which the surviving spouse of the deceased 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 In Common law legal systems a trust is an arrangement whereby Property (including real tangible and intangible is managed by one person (or persons or organizations Where property is passed to a person but no gift is made it is held for the owner this is the Resulting trust; where property should for some reason of public policy or fairness A constructive trust is an equitable remedy resembling a trust imposed by a Court to benefit a party that has been wrongfully deprived of its rights due to either A resulting trust (from the Latin 'resultare' meaning 'to jump back' is a situation where property "results" back to the transferor A bare trust (sometimes referred to as a simple trust) is a trust in which the beneficiary has a Right to both Income and capital A discretionary trust is a trust where the beneficiaries and/or their entitlements to the trust fund are not fixed but are determined by the criteria set out in the Accumulation & Maintenance ("A&M" trusts are a type of Discretionary trust for the benefit of children and young people in England and Wales An interest in possession trust is a form of legal arrangement which gives a person a "present right to the present enjoyment of something" A charitable trust is a trust established for charitable purposes and is a more specific term than " charitable organisation " A purpose trust is a type of trust which has no beneficiaries, but instead exists for advancing some non- charitable purpose of some kind In American estate planning parlance an incentive trust is a trust designed to encourage or discourage certain behaviors by using distributions of trust income or principal The Protective Trust is a form of settlement found in England and Wales and several Commonwealth countries A spendthrift trust is a trust that is created for the benefit of a person (often because he or she is unable to control spending that gives an independent Trustee A life insurance trust is a trust that is set up for the purpose of owning a Life insurance policy An honorary trust, under the law of trusts, is a device by which a person establishes a trust for which there is neither a charitable purpose, nor a private An asset-protection trust is a term which covers a wide spectrum of legal structures A special needs trust is created to ensure that beneficiaries who are disabled or Mentally ill can enjoy the use of Property which is intended to A Supplemental Needs Trusts is a US-specific term for a type of Special needs trust (an internationally recognised term In Common law legal systems a trust is an arrangement whereby Property (including real tangible and intangible is managed by one person (or persons or organizations A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his estate at the time of his The cy-près doctrine (pronounced ˌsaɪ ˈpreɪ "sigh-PRAY" is a legal Doctrine that first arose in Common law Courts of equity Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a 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 Probate is the Legal process of settling the estate of a deceased person specifically resolving all claims and distributing the decedent's Property A power of appointment is a term most frequently used in the Law of wills to describe the ability of the Testator (the person writing the will to select Simultaneous death is a problem of inheritance which occurs when two people at least one of whom is entitled to part or all of the other's estate on their death (usually a husband and The slayer rule, in the Common law of Inheritance, is a doctrine that prohibits inheritance by a person who Murders someone from whom he or she stands Disclaimer of interest (also called a renunciation) in the Law of Inheritance, wills and trusts is a term that describes an Advance health care directives or advance directives are instructions given by individuals specifying what actions should be taken for their health in the event that they are A Totten trust (also referred to as a "Payable on Death" account is a form of trust created where one party (the Settlor of the trust places A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive 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 Property is any physical or virtual entity that is owned by an individual Family denotes a group of People affiliated by consanguinity affinity or co-residence Death is the termination of the biological functions that define living Organisms It refers both to a specific For the devolution of property not disposed of by will, see inheritance and intestacy. "Heir" and "Heiress" redirect here For the men and women fragrances endorsed by Paris Hilton see Heiress (fragrance. Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a In the strictest sense, "will" is a general term, while "testament" applies only to dispositions of personal property (this distinction is seldom observed). A will is also used as the instrument in a trust. In Common law legal systems a trust is an arrangement whereby Property (including real tangible and intangible is managed by one person (or persons or organizations
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Requirements for the creation of a will
Any person over the age of majority can draft their own will without the aid of an attorney. The age of majority is the threshold of Adulthood as it is conceptualized (and recognized or declared in Law. Additional requirements may vary, depending on the jurisdiction, but every will must contain the following:
- The testator must clearly identify himself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
- The testator must declare that he revokes all previously-made wills and codicils. A codicil is a document that amends rather than replaces a previously executed will. Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.
- The testator must demonstrate that he has the capacity to dispose of his property, and does so freely and willingly.
- The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). In some jurisdictions, for example Kentucky,[1] the spouse of a beneficiary is also considered an interested witness. The Commonwealth of Kentucky ( is a state located in the East Central United States of America. In the USA, Pennsylvania is the only state which does not require the signing of the will to be witnessed.
- The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.
After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i. Probate is the Legal process of settling the estate of a deceased person specifically resolving all claims and distributing the decedent's Property A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its e. , which will satisfied the legal requirements, and to appoint an executor. An executor, in the broadest sense is one who carries something out (in other words one who is responsible for executing a task If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.
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 -- although this has the effect in law of disinheriting the witness regardless of the provisions of the will.
Some states recognize a holographic will, made out entirely in the testator's own hand. A holographic will is a will and testament that has been entirely handwritten and signed by the Testator. A minority of states even recognize the validity of nuncupative wills. An oral or nuncupative will is a will that has been delivered Orally to the witnesses In England, the formalities of wills are relaxed for soldiers who express their wishes on active service.
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. Community property is a Marital-property regime that originated in civil law jurisdictions and is now also found in some Common-law jurisdictions In England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them at the court's discretion.
It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc. Probate is the Legal process of settling the estate of a deceased person specifically resolving all claims and distributing the decedent's Property ). Warren Burger's will did not contain this, which wound up costing his estate thousands. Warren Earl Burger ( September 17 1907 – June 25 1995) was Chief Justice of the United States from 1969 to 1986 This is not a consideration in English law, which provides that all such expenses will fall on the estate in any case.
Revocation
Methods and effect
The intentional physical destruction of a will by the testator will revoke it. This could be accomplished by the testator deliberately burning or tearing the physical document itself, or even by striking out the signature. A document (noun is a bounded physical representation of body of Information designed with the capacity (and usually intent to Communicate. A signature (from Latin signare, " Sign " is a handwritten (and sometimes stylized depiction of someone's name nickname or even a simple Most jurisdictions allow partial revocation 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 is physically incapacitated), if this is done in his 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 his 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, however, because normally a court will 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 his heirs will instead inherit by intestate succession. In law revocation is a type of remedy for buyers when the buyer accepts a nonconforming good from the seller Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a
In England and Wales, marriage will automatically revoke a will as it is presumed that upon marriage, a testator will want to review the will. England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland NOTICE TO WOULD-BE ROMEOS ************** In law revocation is a type of remedy for buyers when the buyer accepts a nonconforming good from the seller In the Law of Evidence, a presumption of a particular fact can be made without the aid of proof in some situations 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 A statement in a will that it is made in contemplation of forthcoming marriage to a named person will override this. The word Contemplation comes from the Latin root templum (from Greek temnein to cut or divide and means to separate something from its environment and to enclose it in a sector Divorce, conversely, will not revoke a will, but 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. Negligence (Lat negligentia from negligere to neglect literally "not to pick up" is a legal concept in the Common law legal systems usually used to Evidence in its broadest sense includes anything that is used to determine or demonstrate the Truth of an assertion Probate is the Legal process of settling the estate of a deceased person specifically resolving all claims and distributing the decedent's Property
Dependent relative revocation
Many jurisdictions exercise an equitable doctrine known as dependent relative revocation. Equity is the name given to the set of legal principles in jurisdictions following the English common law tradition which supplement strict rules of law where 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 his old will under the (mistaken) belief that the new will would be valid. However, for some reason the new will is not valid and a court may apply the doctrine to reinstate and probate the old will, as 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 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 his 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. "
Election under the will
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. Probate is the Legal process of settling the estate of a deceased person specifically resolving all claims and distributing the decedent's Property As a simple example, under Iowa law (see Code of Iowa Section 633.238 (2005)), the deceased spouse leaves a will which expressly gifts 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 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.
Wills in history
Some wills have unusual wishes. Charles Vance Millar's will was notorious for offering the bulk of his estate to the Toronto woman who had the greatest number of children in the ten years after his death (the Great Stork Derby). Charles Vance Millar ( 1853 - October 31 1926) was a Canadian Lawyer and Financier. Toronto (təˈrɒntoʊ colloquially pronounced or) is the largest city in Canada and is the provincial capital of Ontario The Great Stork Derby was a period from 1926 to 1936 where women in Toronto competed to produce the most babies in order to qualify for an unusual bequest in a will Attempts to invalidate it by his would-be heirs were unsuccessful, and the bulk of Millar's fortune eventually went to four women. Another famous case, Estate of Kidd involved a will found on a deceased Arizona prospector who left his entire $250,000 estate "for research or some scientific proof of a soul of the human body which leaves at death. The State of Arizona ( is a state located in the southwestern region of the United States. I think in time there can be a photograph of a soul leaving the human at death. "
The Thellusson Will Case in England where the costs involved took the major part of the estate was fictionalised by Charles Dickens as Jarndyce and Jarndyce, and led to Parliament legislating against such accumulation of money for later distribution. The Thellusson Will Case was a law suit resulting from the will of Peter Thellusson, an English merchant (1737-1797 England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland Jarndyce and Jarndyce is a fictional court case in Chancery in the novel Bleak House by Charles Dickens.
Though most people are aware they need a will, as many as 66% of Americans, according to Consumer Reports, don't have one. Consumer Reports is an American Magazine published monthly by Consumers Union. Among the notables who died without either a valid will or no will at all are Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, Howard Hughes, Martin Luther King, Jr., Tupac Shakur, Kurt Cobain, Buddy Holly, Lenny Bruce, Billie Holiday, Marvin Gaye, Sam Cooke, Cass Elliot, Sonny Bono, Tiny Tim, Karl Marx and Pablo Picasso. Abraham Lincoln (February 12 1809 &ndash April 15 1865 the sixteenth President of the United States, successfully led his country through its greatest internal Andrew Johnson (December 29 1808 – July 31 1875 was the seventeenth President of the United States (1865-69 succeeding to the Presidency upon the assassination Ulysses S Grant, born Hiram Ulysses Grant (April 27 1822 &ndash July 23 1885 was an American general and the eighteenth President of the United States Howard Robard Hughes Jr (December 24 1905 – April 5 1976 was an American Aviator, Industrialist, Film producer / director, Philanthropist Martin Luther King Jr ( January 15, 1929 April 4, 1968) was an American clergyman, Activist and prominent leader Tupac Amaru Shakur (June 16 1971 &mdash September 13 1996 also known by his Stage names 2Pac and Makaveli, was an American rapper Kurt Donald Cobain (February 20 1967 – c April 5 1994 was an American musician who served as lead singer, Guitarist, and songwriter for the Seattle Charles Hardin "Buddy" Holley (September 7 1936 – February 3 1959 was an American Singer-songwriter and a pioneer of Rock and roll. Lenny Bruce (October 13 1925 &ndash August 3 1966 born Leonard Alfred Schneider, was an American Stand-up comedian, Writer, social Billie Holiday (born Eleanora Fagan; April 7 1915 – July 17 1959 was an American Jazz singer and songwriter Marvin Pentz Gay Jr, known as Marvin Gaye ( April 2, 1939 – April 1, 1984) was an American Singer-songwriter Sam Cooke ( January 22, 1931 &ndash December 11, 1964) was an American gospel, R&B, soul, and Cass Elliot ( September 19 1941 – July 29 1974) born Ellen Naomi Cohen, was a noted American Singer, best Salvatore Phillip "Sonny" Bono ( February 16, 1935 – January 5, 1998) was an American Record producer, Herbert Khaury ( April 12 1932 &ndash November 30 1996) better known by the Stage name Tiny Tim, was an American Pablo Diego José Francisco de Paula Juan Nepomuceno María de los Remedios Cipriano de la Santísima Trinidad Martyr Patricio Clito Ruíz y Picasso (October 25 1881 &ndash April 8 1973
The shortest known legal will in history is that of Bimla Rishi of Delhi, India. Delhi (दिल्ली ਦਿੱਲੀ دلی d̪ɪlːiː sometimes referred to as Dilli) is the second largest metropolis of India, with a population India, officially the Republic of India (भारत गणराज्य inc-Latn Bhārat Gaṇarājya; see also other Indian languages) is a country His will, dated February 9, 1995, is written in Hindi, translating as "all to son" and consisting of just four characters. Events 474 - Zeno crowned as co-emperor of the Byzantine Empire. Year 1995 ( MCMXCV) was a Common year starting on Sunday. Events of 1995 A close second is the will of Karl Tausch, whose will of January 19, 1967 is in Czech and consists solely of the phrase vše ženě "all to wife". Events 1419 - Hundred Years' War: Rouen surrenders to Henry V of England completing his reconquest of Normandy. Year 1967 ( MCMLXVII) was a Common year starting on Sunday (link will display full calendar of the 1967 Gregorian calendar.
Freedom of disposition
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. England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland The United States of America —commonly referred to as the Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive 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". Civil law or Romano-Germanic law or Continental law is the predominant system of law in the world. Forced heirship is a reference to the testamentary Laws which limit the discretion of the Testator to distribute assets under a will or Codicil
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. Same-sex marriage (also referred to as gay marriage) is a term for a legally or Socially recognized Marriage between two people of the same A civil union is a legally recognized union similar to Marriage. Opponents of such advocacy rebut this claim by pointing to the ability of same-sex couples to disperse their assets by will. Historically, courts have been more willing to strike down wills leaving property to a same-sex partner for reasons such as incapacity or undue influence. A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its Discussion As an aspect of the Social contract between a state and its Citizens the state adopts a role of protector to the weaker and more vulnerable members Undue influence (as a term in Jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person See, 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)
Terminology used in Wills
- A bequest is a gift in the form of personal property. Personal property is a type of Property. In the Common law systems personal property may also be called chattels or personalty.
- A codicil is an amendment to a will. A codicil is a document that amends rather than replaces a previously executed will.
- A devise is special gift of real property in a will. In the Common law, real property (or realty) refers to one of the two main classes of Property, the other class being Personal property (
- A devisee is a person who receives a devise.
- A legacy is a gift. A gift, in the Law of Property, has a very specific meaning In order for a Gift to be legally effective the grantor must have intended to give the gift Historically, a legacy has referred to either a gift of real property or personal property.
- A legatee is a person who receives a legacy.
- A demonstrative legacy (sometimes referred to as a specific legacy or specific gift) is a gift of a specific item of tangible or intangible personal property, such as a bank account, shares of stock, a bond, etc.
- To die testate means having created a will before death. A person who has not created a will prior to death is said to be intestate.
- A testator is a person who executes a will; that is, the person whose will it is. The antiquated English term of testatrix was used to refer to a female but is generally no longer in standard legal usage.
- An executor or personal representative [PR] is the person designated to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator's wishes in the will. In most cases, the testator will nominate an executor/PR in the will unless that person is unable or unwilling to serve.
See also
Notes and references
- ^ Kentucky Revised Statutes § 394. Ademption is a term used in the Law of wills to determine what happens when property bequeathed under a will is no longer in the Testator 's estate when 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 Wills in the Ancient World The will if not purely Roman in origin at least owes to Roman law its complete development a development which in most European countries Estate planning is the process of accumulating and disposing of an estate to maximize the goals of the estate owner 210(2) (2006).
External links
- Court TV's Famous Wills
- Prerogative Court of Canterbury wills (1384 - 1858) available for download
- William Shakespeare's Will
- Jane Austen's Will
- Getting copies of UK wills made after 1858
- List of UK Regional Probate Registries - Regional Offices for probate information and to register the location of a Will and/or Executor
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