This article has multiple issues. Please help improve it or discuss these issues on the talk page. It needs additional citations for verification. Tagged since May 2007. It may not represent a worldwide view of the subject. Tagged since July 2006.

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 and intestacy.

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 that is effective only after the death of the testator.

Requirements for creation[link]

Any person over the age of majority and of sound mind (having appropriate mental capacity) can draft his own will with or without the aid of a lawyer. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:

• 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 should declare that he revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.
• The testator may demonstrate that he has the capacity to dispose of his property ("sound mind"), 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). There may be extra witnesses, these are called "supernumerary" witnesses, if there is a question as to an interested-party conflict. Some jurisdictions, notably Pennsylvania, have long abolished any requirement for witnesses. In the United States, Louisiana requires both attestation by two witnesses as well as notarization by a notary public. "Holographic" or handwritten wills generally require no witnesses to be valid.
• 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 (ii) invalidating their status as a witness. In a growing number of states in the United States, 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 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.
• One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

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 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, made out entirely in the testator's own hand, or in some modern formulations, with material provisions in the testator's hand. The distinctive feature of a holographic will is less that it is handwritten by the testator and often that it need not be witnessed. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman's will. A minority of jurisdictions even recognize the validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used.

A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. In the United States, children may be disinherited by a parent's will, except in Louisiana, where a minimum share is guaranteed to surviving children. Many civil law countries follow a similar rule. In England and Wales from 1933 to 1975, a will could disinherit a spouse but since 1975 such an attempt can be defeated by a court order if it leaves the surviving spouse (or other entitled dependent) without reasonable financial provision.^[1]

Types of wills generally include:

• nuncupative (non-culpatory) - oral or dictated; often limited to sailors or military personnel
• holographic- written in the hand of the testator; in many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.^[2]
• self-proved- in solemn form with affidavits of subscribing witnesses to avoid probate
• notarial - will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States)
• mystic- sealed until death
• serviceman's will - will of person in active-duty military service and usually lacking certain formalities, particularly under English law
• 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
• unsolemn will - will in which the executor is unnamed
• will in solemn form - signed by testator and witnesses

Probate[link]

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.e., which will satisfy the legal requirements, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit. In some jurisdictions, however, statutes may provide requirements for a "self-proving" will (must be met during the execution of the will), in which case witness testimony may be forgone during probate. 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, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands.^{[dubious – discuss]} This is not a consideration under English law, which provides that all such expenses will fall on the estate in any case.

Revocation[link]

Methods and effect[link]

Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or tearing the physical document itself, or by striking out the signature. In most jurisdictions, partial revocation is allowed if only part of the text or a particular provision is crossed out. Other jurisdictions will either ignore the attempt or hold that the entire will was actually revoked. A testator may also be able to revoke by the physical act of another (as would be necessary if he 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 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.

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 in many jurisdictions, will have the effect that the former spouse is treated as if they had died before the testator and so will not benefit.

Where a will has been accidentally destroyed, on evidence that this is the case, a copy will or draft will may be admitted to probate.

Dependent relative revocation[link]

Many jurisdictions exercise an equitable doctrine known as dependent relative revocation ("DRR"). Under this doctrine, courts may disregard a revocation that was based on a mistake of law on the part of the testator as to the effect of the revocation. For example, if a testator mistakenly believes that an earlier will can be revived by the revocation of a later will, the court will ignore the later revocation if the later will comes closer to fulfilling the testator's intent than not having a will at all. The doctrine also applies when a testator executes a second, or new will and revokes 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 dollars. However, the doctrine of relative revocation will not apply if the interlineation decreases the amount of the gift from the original provision (e.g., "$5,000 to Alice Johnson" is crossed out and replaced with "$3,000 to Alice Johnson" without Testator's signature or the date in the margin; DRR does not apply and Alice Johnson will take nothing).

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

Election under the will[link]

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. 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 his/her lifetime. This is called a "life estate" and terminates immediately upon the surviving spouse's death.

The historical and social policy purposes of such statutes are to assure that the surviving spouse receives a statutorily set minimum amount of property from the decedent. Historically, these statutes were enacted to prevent the deceased spouse from leaving the survivor destitute, thereby shifting the burden of care to the social welfare system.

In history[link]

Alfred Nobel's will, in which he endows the Nobel prize.

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.

The Thellusson Will Case was fictionalized by Charles Dickens as Jarndyce and Jarndyce in Bleak House, and led to Parliament legislating against such accumulation of money for later distribution.

According to Consumer Reports, as many as 56% of Americans don't have a will. Among the notables who died either without a valid will or no will at all are Ross Alexander, Fatty Arbuckle, Anura Bandaranaike, Madhav Prasad Birla, Sonny Bono, George Brent, Lenny Bruce, Jacob A. Cantor, Kurt Cobain, Russ Columbo, Sam Cooke, James Dean, Sandy Dennis, John Denver, Divine, Duke Ellington, Cass Elliot, Chris Farley, Bobby Fischer, 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 Frederica Evelyn 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 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)^[3]

Freedom of disposition[link]

Last will and testament of Tennessee Williams

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 Kaufmanns Will, 20 A.D.2d 464, 247 N.Y.S.2d 664 (1964), affd, 15 N.Y.2d 825, 257 N.Y.S.2d 941, 205 N.E.2d 864 (1965)

Terminology[link]

• Administrator - person appointed or who petitions to administer an estate in an intestate succession. The antiquated English term of administratrix was used to refer to a female but is generally no longer in standard legal usage.
• Beneficiary - anyone receiving a gift or benefitting from a trust
• Bequest - testamentary gift of personal property, traditionally other than money.
• Codicil - (1) amendment to a will; (2) a will that modifies or partially revokes an existing or earlier will.
• Decedent - the deceased (U.S. term)
• Demonstrative Legacy - a gift of a specific sum of money with a direction that is to be paid out of a particular fund.
• Descent - succession to real property.
• Devise - testamentary gift of real property.
• Devisee - beneficiary of real property under a will.
• 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'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.
• Inheritor - a beneficiary in a succession, testate or intestate.
• Intestate - person who has not created a will, or who does not have a valid will at the time of death.
• Legacy - testamentary gift of personal property, traditionally of money. Note: historically, a legacy has referred to either a gift of real property or personal property.
• Legatee - beneficiary of personal property under a will, i.e., a person receiving a legacy.
• Probate - legal process of settling the estate of a deceased person.
• Specific legacy (or specific bequest) - a testamentary gift of a precisely identifiable object.
• Testate - person who dies having created a will before death.
• Testator - person who executes or signs a will; that is, the person whose will it is. The antiquated English term of Testatrix was used to refer to a female and is still in use in the US.^{[citation needed]}

See also[link]

• Ademption
• Estate Planning
• Legal history of wills
• Will aid
• Will contest

References[link]

1. ^ Inheritance (Provision for Family and Dependants) Act 1975
2. ^ "Azestatelawyers.com". Azestatelawyers.com. 2010-08-28. http://www.azestatelawyers.com/article/statutory-requirements/holographic-hand-written-wills/. Retrieved 2012-03-26. 
3. ^ http://thelongestlistofthelongeststuffatthelongestdomainnameatlonglast.com/smallest138.html

Books[link]

• Administration of Wills, Trusts, and Estates by Gordon W. Brown, Delmar Cengage Learning (ISBN 0-7668-5281-4) (ISBN 978-0-7668-5281-5)

External links[link]

Wikiquote has a collection of quotations related to: Wills

Wikimedia Commons has media related to: Wills

• Citizens Advice Bureau (UK)
• Wills of the Rich and Famous Living Trust Network
• Prerogative Court of Canterbury wills (1384 - 1858)
• Download the wills of famous people UK National Archives
• William Shakespeare's Will
• Thomas Jefferson's Last Will
• "Wills Frequently Asked Questions" - GB Legal
• "Last Will and Testament in Thailand
• Jane Austen's Will
• 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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The examples and perspective in this article may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (May 2012)

Lady Justice is the symbol of justice. Lady Justice is depicted as a goddess equipped with three symbols of justice: a sword symbolising the court's coercive power; scales representing an objective standard by which competing claims are weighed; and a blindfold indicating that justice is (or should be) meted out objectively, without fear or favor, regardless of identity, money, power, or weakness.^[1]

The Law^[2] is a system of rules and guidelines which are enforced through social institutions to govern behavior.^[3] Laws are made by governments, specifically by their legislatures. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics and society in countless ways and serves as a social mediator of relations between people.

A general distinction can be made between civil law jurisdictions (including Canon and Socialist law), in which the legislature or other central body codifies and consolidates their laws and common law systems (including Sharia), where judge-made binding precedents are accepted. In some countries, religion may inform the law; for example, in jurisdictions that practice Islamic law, Jewish law or Canon law.

The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is designated dishonest by the government and in which the guilty party may be imprisioned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with disputes between individuals or organizations, in which compensation may be awarded to the wronged litigant.

Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person's property are harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action.

To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress^{[citation needed]}.

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."^[4] Writing in 350 BCE, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."^[5]

In a presidential democracy, the constitution is sovereign and the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. In parliamentary systems, the legislature is sovereign and appoints one of its members as the executive (often called the prime minister). The judicial branch is under the parliament.

Legal subjects[link]

All legal systems deal with the same basic issues, but jurisdictions categorise and identify its legal subjects in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property).^[6] In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects",^[7] although there are many further disciplines .

International law[link]

Providing a constitution for public international law, the United Nations system was agreed during World War II

International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.

• Public international law concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War),^[8] the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience.^[9] However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.^[10]

• Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.^[11]

• European Union law is the first and, so far, only example of a internationally accepted legal system other than the UN and the World Trade Organisation. Given the trend of increasing global economic integration, many regional agreements—especially the Union of South American Nations—are on track to follow the same model. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law.^[12] As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.^[13]

Constitutional and administrative law[link]

The French Declaration of the Rights of Man and of the Citizen, whose principles still have constitutional value

Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution with a bill of rights. A few, like the United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. A case named Entick v Carrington^[14] illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority. However, there was no written statutory provision or court authority. The leading judge, Lord Camden, stated that,

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.^[15]