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Guide To Understanding
A Last Will and Testament

In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. For the devolution of property not disposed of by will, see inheritance and intestacy. 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.

Freedom of Disposition

The conception of 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".

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, courts have been more willing to strike down wills leaving property to a same-sex partner for reasons such as incapacity or undue influence.

Requirements for the Creation of a Will

Any person over the age of majority can draft his own will without the aid of an attorney. 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. 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, the spouse of a beneficiary is also considered an interested witness.

  • 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, i.e., whether it satisfied the legal requirements, and to appoint an executor. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.

Although there is no legal requirement that a will be drawn up by a lawyer, there are many pitfalls into which home-made wills may fall, and it is highly desirable that any will is the subject of legal advice before drafting or execution. 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 no room for mistake.

A very 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 minority of states even recognize the validity of nuncupative wills. 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. 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 in the court's discretion.

It is not only a good idea but also essential that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands. 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. 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 England and Wales, marriage will automatically revoke a will as 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 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. 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."

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). 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. I think in time there can be a photograph of a soul leaving the human at death."

Though most people are aware they need a will, as many as 66% of Americans, according to Consumer Reports, don't have one. 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.

The shortest known legal will in history is that of Bimla Rishi of Delhi, India. His will, dated February 9, 1995, is written in Hindi, translating as "all to son" and consisting of just four characters. 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".

Terminology Used in Wills

  • A bequest is a gift of in the form of a stated amount of money

  • A codicil is an amendment to a will.

  • A demonstrative legacy is a gift from a specific bank account, or a specified set of savings bonds, stock certificates, or other bonds.

  • A devise is special gift of real property in a will.

  • A devisee is a person who receives a devise.

  • Intestate means without a will; this is often seen in the phrase "to die intestate".

  • A legacy is a gift.

  • A legatee is a person who receives a legacy.
    Testate means with a will.

  • The testator is a person who executes a will; that is, the person whose will it is.

 
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