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Legal proclamation past which a person distributes their property at expiry

A volition or testament is a legal document that expresses a person'due south (testator) wishes as to how their property (estate) is to be distributed after their death and equally to which person (executor) is to manage the property until its concluding distribution. For the distribution (devolution) of holding not determined by a will, encounter inheritance and intestacy.

Though information technology has at times been thought that a "volition" historically applied only to existent holding while "attestation" applied only to personal holding (thus giving ascent to the popular title of the document as "final will and testament"), the historical records evidence that the terms take been used interchangeably.^[1] Thus, the discussion "will" validly applies to both personal and real belongings. A will may also create a testamentary trust that is constructive only after the expiry of the testator.

History [edit]

Throughout most of the world, disposal of an manor 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 language phrase "will and attestation" is derived from a period in English police force when Sometime English and Law French were used side by side for maximum clarity. Other such legal doublets include "breaking and entering" and "peace and tranquillity".^[2]

Freedom of disposition [edit]

The concept of the freedom of disposition by will, familiar as it is in modernistic England and the United States, both by and large considered common law systems, is by no means universal. In fact, complete freedom is the exception rather than the rule.^[3] ^: 654 Ceremonious police systems frequently put some restrictions on the possibilities of disposal; run across for example "Forced heirship".

Advocates for gays and lesbians have pointed to the inheritance rights of spouses as desirable for same-sex couples also, through same-sex marriage or ceremonious unions. Opponents of such advocacy rebut this claim by pointing to the ability of same-sexual activity couples to disperse their avails by volition. Historically, withal, information technology 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 claiming the will",^[4] with courts being more willing to strike down wills leaving property to a same-sexual practice partner on such grounds every bit incapacity or undue influence.^[5] ^[half-dozen]

Types of wills [edit]

Types of wills generally include:

nuncupative (non-culpatory) – oral or dictated; often limited to sailors or armed services personnel.
holographic will – written in the hand of the testator; in many jurisdictions, the signature and the textile terms of the holographic will must be in the handwriting of the testator.
cocky-proved – in solemn form with affidavits of subscribing witnesses to avoid probate.
notarial – will in public class and prepared past a ceremonious-law notary (civil-law jurisdictions and Louisiana, U.s.).
mystic – sealed until death.
serviceman's will – will of person in active-duty military service and usually lacking certain formalities, particularly under English constabulary.
reciprocal/mirror/mutual/husband and wife wills – wills made by two or more parties (typically spouses) that make similar or identical provisions in favor of each other.
joint will – similar to reciprocal wills only one instrument; has a binding effect on the surviving testator(s). Outset documented in English police in 1769.^[7]
unsolemn will – will in which the executor is unnamed.
will in solemn form – signed past testator and witnesses.

Some jurisdictions recognize a holographic will, made out entirely in the testator's own hand, or in some mod formulations, with material provisions in the testator's hand. The distinctive characteristic of a holographic will is less that it is handwritten by the testator, and often that it need non be witnessed. In Louisiana this type of testament is called an olographic testament.^[viii] Information technology 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 cease of the testament. Whatever additions or corrections must too be entirely mitt written to have effect.

In England, the formalities of wills are relaxed for soldiers who express their wishes on agile 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 armed services personnel or merchant sailors. However, in that location are often constraints on the disposition of property if such an oral will is used.

Terminology [edit]

Administrator – person appointed or who petitions to administer an manor in an intestate succession. The antiquated English term of administratrix was used to refer to a female person administrator but is mostly no longer in standard legal usage.
Apertura tabularum – in ancient law books, signifies the breaking open of a last volition and testament.
Beneficiary – anyone receiving a souvenir or benefiting from a trust
Bequest – testamentary souvenir of personal property, traditionally other than coin.
Codicil – (1) amendment to a volition; (2) a will that modifies or partially revokes an existing or earlier volition.
Decedent – the deceased (U.Southward. term)
Demonstrative Legacy – a gift of a specific sum of money with a management that is to be paid out of a particular fund.
Descent – succession to real belongings.
Devise – testamentary gift of existent property.
Devisee – beneficiary of existent holding nether a volition.
Distribution – succession to personal property.
Executor/executrix or personal representative [PR] – person named to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator'due south wishes in the will. In most cases, the testator will nominate an executor/PR in the volition unless that person is unable or unwilling to serve. In some cases a literary executor may be appointed to manage a literary estate.
Exordium clause is the showtime paragraph or sentence in a volition and testament, in which the testator identifies himself or herself, states a legal abode, and revokes any prior wills.
Inheritor – a beneficiary in a succession, testate or intestate.
Intestate – person who has not created a volition, or who does not have a valid volition at the time of decease.
Legacy – testamentary gift of personal property, traditionally of money. Note: historically, a legacy has referred to either a gift of real belongings or personal property.
Legatee – casher of personal property nether a will, i.east., a person receiving a legacy.
Probate – legal process of settling the estate of a deceased person.
Residuary estate - the portion of an estate remaining after the payment of expenses and the distribution of specific bequests; this passes to the residuary legatees.
Specific legacy (or specific bequest) – a testamentary gift of a precisely identifiable object.
Testate – person who dies having created a will earlier expiry.
Testator – person who executes or signs a volition; that is, the person whose will it is. The antiquated English term of Testatrix was used to refer to a female.^[9]
Trustee – a person who has the duty under a will trust to ensure that the rights of the beneficiaries are upheld.

Requirements for creation [edit]

Any person over the age of bulk and having "testamentary chapters" (i.e., generally, being of sound mind) tin make a volition, with or without the aid of a lawyer.

Content of the will [edit]

Required content varies, depending on the jurisdiction, but more often than not includes the post-obit:

The testator must conspicuously place themselves every bit the maker of the volition, and that a will is existence made; this is commonly called "publication" of the will, and is typically satisfied past the words "last will and testament" on the face of the certificate.
The testator should declare that he or she revokes all previous wills and codicils. Otherwise, a subsequent volition revokes earlier wills and codicils only to the extent to which they are inconsistent. All the same, if a subsequent will is completely inconsistent with an earlier i, the earlier will is considered completely revoked by implication.
The testator may demonstrate that he or she has the chapters to dispose of their property ("sound listen"), and does so freely and willingly.
The testator must sign and date the will, ordinarily in the presence of at to the lowest degree ii disinterested witnesses (persons who are non beneficiaries). In that location may exist extra witnesses, these are called "supernumerary" witnesses, if there is a question as to an interested-party disharmonize. Some jurisdictions, notably Pennsylvania, have long abolished any requirement for witnesses. In the U.s.a., Louisiana requires both testament past two witnesses too as notarization past a notary public. Holographic wills generally require no witnesses to be valid, simply depending on the jurisdiction may need to exist proved subsequently as to the authenticity of the testator's signature.
If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either (i) disallowing them to receive under the will, or (two) invalidating their status as a witness. In a growing number of states in the United states of america, however, an interested party is only an improper witness as to the clauses that benefit him or her (for instance, in Illinois).
The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will exist ignored, or the entire will may be invalidated if what comes after the signature is and then material that ignoring it would defeat the testator's intentions.
One or more than beneficiaries (devisees, legatees) must generally be clearly stated in the text, simply some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous volition, or names an executor.

A volition may not include a requirement that an heir commit an illegal, immoral, or other act confronting 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'south 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 volition could disinherit a spouse; all the same, since the Inheritance (Provision for Family unit and Dependants) Act 1975 such an attempt tin can exist defeated by a court club if it leaves the surviving spouse (or other entitled dependent) without "reasonable fiscal provision".

Role of lawyers [edit]

At that place is no legal requirement that a will exist drawn up by a lawyer, and some people may resist hiring a lawyer to typhoon a will.^[11] People may draft a will with the assistance of a lawyer, employ a software production^[12] or volition grade, or write their wishes entirely on their ain. Some lawyers offering educational classes for people who want to write their own volition.^[thirteen]

When obtained from a lawyer, a will may come as role of an estate planning package that includes other instruments, such as a living trust.^[xiv] A volition that is drafted past a lawyer should avert possible technical mistakes that a layperson might make that could potentially invalidate part or all of a will.^[xv] 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.^[sixteen]

International wills [edit]

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 exist valid and enforceable in every land that became a party to the Convention. These are known as "international wills". It is in force in Commonwealth of australia, Belgium, Bosnia-Herzegovina, Canada (in ix provinces, not Quebec), Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia. The Holy See, Islamic republic of iran, Laos, the Russian Federation, Sierra Leone, the Great britain, and the Usa accept signed but not ratified.^[18] International wills are only valid where the convention applies. Although the U.Due south. has not ratified on behalf of any state, the Uniform law has been enacted in 23 states and the District of Columbia.^[eighteen]

For individuals who own assets in multiple countries and at least one of those countries are not a role of the Convention, it may be advisable for the person to take multiple wills, 1 for each state.^[18] ^[19] In some nations, multiple wills may be useful to reduce or avert taxes upon the estate and its assets.^[20] Care must exist taken to avoid accidental revocation of prior wills, conflicts betwixt the wills, to anticipate jurisdictional and choice of law issues that may ascend during probate.^[19]

Revocation [edit]

Methods and effect [edit]

Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or violent the physical certificate itself, or by striking out the signature. In near jurisdictions, fractional revocation is immune if only part of the text or a particular provision is crossed out. Other jurisdictions will either ignore the attempt or hold that the unabridged will was actually revoked. A testator may also exist able to revoke by the physical act of some other (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 whatever wills that came earlier them, because otherwise a courtroom will commonly still attempt to read the wills together to the extent they are consequent.

In some jurisdictions, the complete revocation of a will automatically revives the next-near recent volition, while others hold that revocation leaves the testator with no will, so that their heirs will instead inherit past intestate succession.

In England and Wales, marriage will automatically revoke a will, for it is presumed that upon wedlock a testator volition want to review the will. A statement in a will that it is fabricated in contemplation of forthcoming wedlock to a named person volition override this.

Divorce, conversely, will not revoke a will, but in many jurisdictions volition take the effect that the one-time spouse is treated as if they had died before the testator and and so will not benefit.

Where a will has been accidentally destroyed, on evidence that this is the case, a re-create will or typhoon volition may be admitted to probate.

Dependent relative revocation [edit]

Many jurisdictions exercise an equitable doctrine known as "dependent relative revocation" ("DRR"). Nether this doctrine, courts may disregard a revocation that was based on a mistake of law on the part of the testator as to the upshot of the revocation. For example, if a testator mistakenly believes that an earlier volition tin be revived by the revocation of a later volition, the court will ignore the after revocation if the subsequently volition comes closer to fulfilling the testator'due south intent than not having a will at all. The doctrine also applies when a testator executes a 2d, or new will and revokes their erstwhile 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 utilize the doctrine to reinstate and probate the old will, if the courtroom holds that the testator would prefer the onetime 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 holding. That is, after revoking the prior will, the testator could accept made an alternative program of disposition. Such a program would evidence that the testator intended the revocation to outcome in the belongings going elsewhere, rather than merely beingness a revoked disposition. Secondly, courts require either that the testator have recited their fault in the terms of the revoking instrument, or that the error be established past clear and disarming evidence. For instance, when the testator fabricated 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 practical to restore a gift erroneously struck from a volition if the intent of the testator was to overstate that gift, only will not utilize 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 $five,000 to his secretary, Alice Johnson. If Tom crosses out that clause and writes "$vii,000 to Alice Johnson" in the margin, only does not sign or engagement the writing in the margin, most states would notice that Tom had revoked the earlier provision, merely had not finer amended his will to add the second; however, under DRR the revocation would be undone because Tom was interim under the mistaken belief that he could increase the gift to $seven,000 by writing that in the margin. Therefore, Alice will become 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.thousand., "$5,000 to Alice Johnson" is crossed out and replaced with "$three,000 to Alice Johnson" without Testator'south signature or the date in the margin; DRR does not use and Alice Johnson will accept nix).

Similarly, if Tom crosses out that clause and writes in the margin "$v,000 to Betty Smith" without signing or dating the writing, the souvenir to Alice will exist effectively revoked. In this example, it will not be restored under the doctrine of DRR because even though Tom was mistaken about the effectiveness of the souvenir to Betty, that mistake does not affect Tom'due south intent to revoke the gift to Alice. Because the souvenir to Betty will be invalid for lack of proper execution, that $5,000 will go to Tom's residuary estate.

Election against the will [edit]

Also referred to every bit "electing to take confronting the will". In the U.s.a., many states accept probate statutes that let 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 nether the deceased spouse's will. As a simple instance, under Iowa constabulary (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 alive in the home for the remainder of his/her lifetime. This is chosen a "life manor" 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 corporeality of property from the decedent. Historically, these statutes were enacted to forestall 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 manor. The decedent'south debts, authoritative expenses and reasonable funeral expenses are paid prior to the adding of the spousal elective share. The constituent share is calculated through the "net estate". The internet estate is inclusive of belongings that passed by the laws of intestacy, testamentary belongings, and testamentary substitutes, every bit enumerated in EPTL 5-1.1-A. New York'due south 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 [edit]

In antiquity, Julius Caesar's will, which named his g-nephew Octavian as his adopted son and heir, funded and legitimized Octavian's ascension to political ability in the late Republic; it provided him the resource necessary to win the civil wars confronting 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'south assassins. Octavian'south illegal publication of Antony's sealed volition was an of import factor in removing his support inside Rome, as it described his wish to exist buried in Alexandria beside the Egyptian queen Cleopatra.

In the modern era, the Thellusson v Woodford will case led to British legislation confronting the accumulation of money for later distribution and was fictionalized every bit Jarndyce and Jarndyce in Charles Dickens's Bleak House. The Nobel Prizes were established by Alfred Nobel'southward will. Charles Vance Millar'south will provoked the Swell Stork Derby, as he successfully ancestral the bulk of his estate to the Toronto-expanse adult female who had the greatest number of children in the 10 years afterwards his decease. (The prize was divided amongst four women who had nine, with smaller payments fabricated to women who had borne 10 children simply lost some to miscarriage. Another woman who bore ten children was disqualified, for several were illegitimate.)

The longest known legal volition is that of Englishwoman Frederica Evelyn Stilwell Cook. Probated in 1925, information technology was 1,066 pages, and had to be jump 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 volition is of Shripad Krishnarao Vaidya of Nagpur, Maharashtra, consisting of five letters ("HEIR'S").^[22] ^[23]

An unusual holographic will, accepted into probate every bit a valid one, came out of a tragic accident. On eight June 1948 in Saskatchewan, Canada, a farmer named Cecil George Harris became trapped under his ain tractor. Thinking he would non survive (though found alive after, he died of his injuries in hospital), Harris carved a will into the tractor's fender, which read:

In instance I die in this mess I leave all to the wife. Cecil Geo. Harris.

The fender was probated and stood every bit his volition. The fender is currently on brandish at the law library of the University of Saskatchewan College of Law.^[24]

Probate [edit]

Afterward the testator has died, an awarding for probate may be fabricated in a court with probate jurisdiction to determine the validity of the will or wills that the testator may accept created, i.east., which will satisfy the legal requirements, and to appoint an executor. In nigh cases, during probate, at least one witness is chosen upon to testify or sign a "proof of witness" affidavit. In some jurisdictions, still, statutes may provide requirements for a "self-proving" volition (must be met during the execution of the volition), in which case witness testimony may be forgone during probate. Often there is a fourth dimension limit, unremarkably 30 days, within which a will must be admitted to probate. In some jurisdictions, just an original will may exist admitted to probate—even the most authentic photocopy will not suffice.^{[ citation needed ]} Some jurisdictions will acknowledge a re-create of a will if the original was lost or accidentally destroyed and the validity of the copy tin 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 likewise [edit]

Ademption
Apertura tabularum
Death and the Internet, including password vaults
Estate planning
Ethical will
Forced heirship
Inheritance
Legal history of wills
Trust law
- Henson trust
- Totten trust
Volition Assistance
Will contest

References [edit]

^ Wills, Trusts, and Estates (Aspen, 7th Ed., 2005)
^ Freedman, Adam (2013). The party of the kickoff part the curious world of legalese. New York: Henry Holt and Visitor. ISBN978-1466822573.
^ I or more of the preceding sentences incorporates text from a publication now in the public domain:Chisholm, Hugh, ed. (1911). "Will". Encyclopædia Britannica. Vol. 28 (11th ed.). Cambridge University Press. pp. 654–658.
^ Eugene F. Scoles, Bug and Materials on Decedents' Estates and Trusts (2000), p. 39.
^ Chuck Stewart, Homosexuality and the Law: A Dictionary (2001), p. 310.
^ Run into too, for case, In Re Kaufmann's Will, 20 A.D.2d 464, 247 North.Y.Southward.2d 664 (1964), aff'd, 15 Due north.Y.second 825, 257 Northward.Y.South.2d 941, 205 N.E.2d 864 (1965).
^ Repository Citation: Contracts Not to Revoke Joint or Mutual Wills, fifteen William & Mary Law Review 144 (1973), https://scholarship.law.wm.edu/wmlr/vol15/iss1/7
^ Louisiana Civil Lawmaking Article 1575 http://legis.la.gov/lss/lss.asp?doc=108900/
^ "Definition of TESTATRIX".
^ For example, if the kid attempted to impale the parent.
^ "Steps to Create an Manor Plan - Consumer Reports". Consumer Reports. November 2013. Retrieved 2020-04-21 .
^ Hartman, Rachel (2019-11-06). "The Best Online Will Making Programs". United states News & World Study.
^ Ewoldt, John (2016-05-eleven). "Prince's manor highlights the value of creating a will". Minneapolis Star Tribune. Archived from the original on 2016-05-11. Retrieved 2020-04-21 .
^ Sullivan, Paul (2018-09-07). "Making Wills Easier and Cheaper With Exercise-Information technology-Yourself Options". The New York Times. ISSN 0362-4331. Retrieved 2020-04-21 .
^ Beck, Laura W.; Bartlett, Stefania 50.; Nerney, Andrew Thousand. "Wills: Connecticut" (PDF). Cummings & Lockwood, LLC. Practical Law. Retrieved 23 April 2020.
^ Hill, Catey (2015-11-27). "Don't purchase legal documents online without reading this story". Market Scout . Retrieved 2020-04-21 .
^ "Convention providing a Uniform Police force on the Form of an International Volition (Washington, D.C., 1973)". world wide web.unidroit.org. 2013-11-07. Retrieved 2020-02-22 .
^ ^a ^b ^c Eskin, Vicki; Driscoll, Bryan. "Estate Planning with Foreign Property". American BAR Clan. Retrieved iii January 2022.
^ ^a ^b Fry, Barry (2012). "Cross Border Manor Issues" (PDF). Advoc . Retrieved 7 June 2017.
^ Popovic-Montag, Suzana; Hull, Ian Thou. (2 Oct 2015). "The Risks and Rewards of Multiple Wills". HuffPost Canada Business organization . Retrieved 7 June 2017.
^ "Thelongestlistofthelongeststuffatthelongestdomainnameatlonglast.com". thelongestlistofthelongeststuffatthelongestdomainnameatlonglast.com.
^ TARUN BHARAT (www.tarunbharat.cyberspace) Nagpur, Sabbatum, 28 April 2012
^ PUNNYA NAGARI (Marathi language daily published at Nagpur) Fri 8 June 2012
^ On Campus News, January 23, 2009: The Last Will and Testament of Cecil George Harris
^ "NRS: CHAPTER 136 - PROBATE OF WILLS AND PETITIONS FOR Letters". www.leg.country.nv.u.s.a..

Books [edit]

Administration of Wills, Trusts, and Estates by Gordon Westward. Brown, Delmar Cengage Learning (ISBN 978-0-7668-5281-5)

External links [edit]

Wikiquote has quotations related to: Wills

Wikimedia Eatables has media related to Wills.

Citizens Communication Bureau (Great britain)
Prerogative Court of Canterbury wills (1384–1858) at the National Athenaeum (pay per view)
Prerogative Court of Canterbury wills on Beginnings.co.uk (subscription)
Download the wills of famous people (Britain National Archives)
William Shakespeare's Will
Thomas Jefferson'southward Last Will
Jane Austen's Will