A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his estate and provides for the transfer of his property at death. For the devolution of property not disposed of by will, see inheritance Inheritance is the practice of passing on property, titles, debts, and obligations upon the death of an individual. It has long played an important role in human societies. The rules of inheritance differ between societies and have changed over time and intestacy Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the ".

In the strictest sense, a "will" has historically been limited to real property while "testament" applies only to dispositions of personal property (thus giving rise to the popular title of the document as "Last Will and Testament"), though this distinction is seldom observed today. A will may also create a testamentary trust In common law legal systems, a trust is a relationship whereby property is managed by one person (or persons, or organizations) for the benefit of another. A trust is created by a settlor (or feoffor to uses), who entrusts some or all of their property to people of their choice (the trustees or feoffee to uses). The trustees hold legal title to that is effective only after the death of the testator.

Contents

Requirements for creation

Any person over the age of majority The age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when a minor ceases to legally be considered a child and assumes control over their persons, actions, and decisions, thereby terminating the legal control and legal responsibilities of their parents or guardian over and for them. The and of sound mind Sanity refers to the soundness, rationality and reasonableness of the human mind. A person is sane (sān) if they are rational. In modern society, the terms have become exclusively synonymous with compos mentis (Latin: compos, having mastery of, and mentis, mind), in contrast with non compos mentis, or insane (having appropriate mental capacity) can draft his or her own will with or without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:

There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

Some jurisdictions recognize a holographic will A holographic will is a will and testament that has been entirely handwritten and signed by the testator. Normally, a will must be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to, 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 more that it need not be witnessed. 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 An oral will is a will that has been delivered orally (that is, in speech) to witnesses, as opposed to the usually form of wills, which is written and according to a proper format (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.

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 Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions. The states of the United States that recognize community property are primarily in the West and acquired this body of law from the law of Mexico, which was derived from Spanish law and ultimately from 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. Many civil law countries follow a similar rule. In England, a will may disinherit a spouse, but close relations, including spouses, excluded from a will may apply to the court for provision to be made for them at the court's discretion.

Types of wills generally include:

Probate

Main article: Probate Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the See also: Administration of an estate on death In English law, Administration of an estate on death arises if the deceased is legally intestate. In United States law, the term Estate Administration is used and Probate court A probate court is a specialized court which deals with matters of probate and the administration of estates

After the testator has died, a probate Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the proceeding may be initiated in court A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute to determine the validity of the will or wills that the testator may have created, i.e., which will satisfied the legal requirements, and to appoint an executor Executor is also a legal term referring to a person named by a maker of a will, or nominated by the testator, to carry out the directions of the will. Typically, the executor is the person responsible for offering the will for probate, although it is not absolutely required that he or she do so. The executor's duties also include the disbursement. 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. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.

It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses (probate Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the, etc.). Warren Burger Warren Earl Burger was Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S. Supreme Court delivered a variety of transformative and controversial decisions on abortion, capital punishment, religious establishment, and school desegregation during his tenure's will did not contain this, which wound up costing his estate thousands. This is not a consideration under English law, which provides that all such expenses will fall on the estate in any case.

Revocation

Methods and effect

Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or tearing the physical document A document , is a bounded physical or digital representation of a body of information designed with the capacity (and usually intent) to communicate. A document may manifest symbolic, diagrammatic or sensory-representational information. To document (verb) is to produce a document artifact by collecting and representing information. In itself, or by striking out the signature A signature is a handwritten (and sometimes stylized) depiction of someone's name, nickname or even a simple "X" that a person writes on documents as a proof of identity and intent. The writer of a signature is a signatory. Similar to a handwritten signature, a signature work describes the work as readily identifying its creator. 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 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 or her 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 Revocation is the act of recall or annulment. It is the reversal of an act, the recalling of a grant, or the making void of some deed previously existing of a will automatically revives the next most recent will, while others hold that revocation leaves the testator with no will so that his or her heirs will instead inherit by intestate succession Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the ".

In England The area now called England has been settled by people of various cultures for about 35,000 years, but it takes its name from the Angles, one of the Germanic tribes who settled during the 5th and 6th centuries. England became a unified state in AD 927, and since the Age of Discovery, which began during the 15th century, has had a significant and Wales Wales ( /ˈweɪlz/ Welsh: Cymru; pronounced [ˈkəmrɨ] (help·info)) is a country that is part of the United Kingdom, bordered by England to its east, and the Atlantic Ocean and Irish Sea to its west. Wales has a population estimated at three million and is officially bilingual; Welsh and English have equal status, and bilingual signs are the, marriage Marriage is a social union or legal contract between individuals that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union may also be called matrimony, while the ceremony that marks will automatically revoke Revocation is the act of recall or annulment. It is the reversal of an act, the recalling of a grant, or the making void of some deed previously existing a will as it is presumed In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The types of presumption includes a rebuttable discretionary presumption, a rebuttable mandatory presumption, and an irrebutable or conclusive presumption. The invocation of a presumption shifts the burden of proof from one party to that upon marriage, a 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 want to review the will. A statement in a will that it is made in contemplation The word contemplation comes from the Latin root templum . It means separating something from its environment and enclosing it in a sector. Contemplation is the Latin translation of Greek 'theory' (theoria). In a religious sense it is usually a type of prayer or meditation 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 Negligence is a legal concept in the common law legal systems mostly applied in tort cases to achieve monetary compensation (damages) for physical and mental injuries (not accidents) destroyed, on evidence Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or (b) were themselves proven via evidence, to demonstrate an assertion's truth. Evidence is the currency by which one fulfills that this is the case, a copy will or draft will may be admitted to probate Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the.

Dependent relative revocation

Many jurisdictions exercise an equitable 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 their application would operate harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in applying the code 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 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 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 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."

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. However, 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 under the will

Also referred to as "electing to take against the will." In the United States, many states have probate Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the statutes which permit the surviving spouse of the decedent to choose to receive a particular share of deceased spouse's estate in lieu of receiving the specified share left to him or her under the deceased spouse's will. As a simple example, under Iowa law (see ), 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 his/her lifetime. This is called a "life estate A life estate is a concept used in common law and statutory law to designate the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death. The owner of a life estate is called a "life tenant"" 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 history

Alfred Nobel's will, in which he endows the Nobel prize The Nobel Prizes are annual international awards bestowed by Scandinavian committees in recognition of cultural and scientific advances. They were established in 1895 by the Swedish chemist Alfred Nobel, the inventor of dynamite. The prizes in Physics, Chemistry, Physiology or Medicine, Literature, and Peace were first awarded in 1901. The.

Charles Vance Millar's will was notorious for offering the bulk of his estate to the Toronto Toronto is the largest city in Canada and the provincial capital of Ontario. It is located in Southern Ontario on the northwestern shore of Lake Ontario. With over 2.5 million residents, it is the fifth most populous municipality in North America. Toronto is at the heart of the Greater Toronto Area (GTA), and is part of a densely populated region woman who had the greatest number of children in the ten years after his death (the Great Stork Derby The Great Stork Derby was a contest during the period from 1926 to 1936, where women in Toronto, Canada, 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.

The Thellusson Will Case was fictionalized by Charles Dickens Charles John Huffam Dickens was the most popular English novelist of the Victorian era, and he remains popular, responsible for some of English literature's most iconic characters as Jarndyce and Jarndyce Jarndyce and Jarndyce is a fictional court case in Chancery in the novel Bleak House by Charles Dickens in Bleak House Bleak House is the ninth novel by Charles Dickens, published in twenty monthly installments between March 1852 and September 1853. It is held to be one of Dickens's finest novels, containing one of the most vast, complex and engaging arrays of minor characters and sub-plots in his entire canon. The story is told partly by the novel's heroine,, and led to Parliament A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French parlement, the action of parler : a parlement is a discussion. The term came to mean a meeting at which such a discussion took place. It acquired legislating against such accumulation of money for later distribution.

Although most people are aware that they need a will, as many as 66% of Americans, according to Consumer Reports Consumer Reports is an American magazine published monthly by Consumers Union. It publishes reviews and comparisons of consumer products and services based on reporting and results from its in-house testing laboratory. It also publishes cleaning and general buying guides. It has approximately 7.3 million subscribers and an annual testing budget of, don't have one. Among the notables who died either without a valid will or no will Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the " at all are: Ross Alexander, Fatty Arbuckle Roscoe Conkling "Fatty" Arbuckle was an American illustrated song slide "model," silent film actor, comedian, director, and screenwriter. Starting at the Selig Polyscope Company he eventually moved to Keystone Studios where he worked with Mabel Normand and Harold Lloyd. He mentored Charlie Chaplin and discovered Buster Keaton, Anura Bandaranaike, Madhav Prasad Birla, Sonny Bono Salvatore Phillip "Sonny" Bono was an American record producer, singer, actor, and politician whose career spanned over three decades, George Brent, Lenny Bruce Leonard Alfred Schneider , better known by the stage name Lenny Bruce, was an extremely influential and controversial American stand-up comedian, writer, social critic and satirist of the 1950s and 1960s, whose comedy revolved heavily around the social stigmas and taboos of the era in which he lived. His 1964 conviction in an obscenity trial was, Jacob A. Cantor, Kurt Cobain Kurt Donald Cobain was an American singer-songwriter and musician, best known as the lead singer and guitarist of the rock band Nirvana, Russ Columbo, Sam Cooke Samuel Cook , known professionally as Sam Cooke, was an American gospel, R&B, soul, and pop singer, songwriter, and entrepreneur. He is considered to be one of the pioneers and founders of soul music. He is commonly known as The King of Soul for his unmatched vocal abilities and impact and influence on the modern world of music. His, James Dean James Byron Dean was an American film actor. Dean's status as a cultural icon is best embodied in the title of his most celebrated film, Rebel Without a Cause, in which he starred as troubled Los Angeles teenager Jim Stark. The other two roles that defined his star were as loner Cal Trask in East of Eden, and as the surly farmer Jett Rink in Giant, Sandy Dennis, John Denver, Divine, Duke Ellington, Cass Elliot, Chris Farley, Redd Foxx, Mary Frann, James A. Garfield, Marvin Gaye, Ulysses S. Grant, Billie Holiday, Buddy Holly, Shemp Howard, Howard Hughes, Andrew Johnson, Florence Griffith-Joyner, Martin Luther King, Jr., Ernie Kovacs, Harry Langdon, Bruce Lee, Abraham Lincoln, Peter Lorre, Jayne Mansfield, Rocky Marciano, Karl Marx, Steve McNair, Sal Mineo, Carmen Miranda, Keith Moon, Rosa Parks, Pablo Picasso, Mihajlo Idvorski Pupin, Tupac Shakur, Don Simpson, Anna Nicole Smith, William Desmond Taylor, Sharon Tate, Tiny Tim, Ritchie Valens, Hervé Villechaize, Barry White, and Jimmy Witherspoon.

The longest known legal will is that of Englishwoman Fredericka Stilwell-Cook. Probated in 1925, it was 1,066 pages, and had to be bound in 4 volumes; her estate was worth $100,000. The shortest known legal wills are that of Bimla Rishi of Delhi, India, and Karl Tausch of Hesse, Germany; each consisted solely of three words.[2]

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. 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.[citation needed] 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

See also

References

  1. ^ http://www.azestatelawyers.com/article/statutory-requirements/holographic-hand-written-wills/
  2. ^ Administration of Wills, Trusts, and Estates, p. 5

Books

External links

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