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Will

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A document in which a person specifies the method to be applied in the management and distribution of his estate after his death.

A will is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. At common law, an instrument disposing of personal property was called a "testament," whereas a will disposed of real property. Over time the distinction has disappeared so that a will, sometimes called a "last will and testament," disposes of both real and personal property.

If a person does not leave a will, or the will is declared invalid, the person will have died intestate, resulting in the distribution of the estate according to the laws of descent and distribution of the state in which the person resided. Because of the importance of a will, the law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid if the testator made the will as the result of undue influence, fraud, or mistake.

A will serves a variety of important purposes. It enables a person to select his heirs rather than allowing the state laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes or with whom he is unacquainted. A will allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. A will safeguards a person's right to select an individual to serve as guardian to raise his young children in the event of his death.

The right to dispose of property by a will is controlled completely by statute. Since the 1970s, many states have adopted all or parts of the Uniform Probate Code, which attempts to simplify the laws concerning wills and estates. When a person dies, the law of his domicile (permanent residence) will control the method of distribution of his personal property, such as money, stock, or automobiles. The real property, such as farm or vacant land, will pass to the intended heirs according to the law of the state in which the property is located. Though a testator may exercise much control over the distribution of property, state laws protect spouses and children by providing ways of guaranteeing that a spouse will receive a minimum amount of property, regardless of the provisions of the will.

Contents

Requirements of a Will

A valid will cannot exist unless three essential elements are present. First, there must be a competent testator. Second, the document purporting to be a will must meet the execution requirements of statutes, often called the Statute of Wills, designed to ensure that the document is not a fraud but is the honest expression of the testator's intention. Third, it must be clear that the testator intended the document to have the legal effect of a will.

If a will does not satisfy these requirements, any person who would have a financial interest in the estate under the laws of descent and distribution can start an action in the probate court to challenge the validity of the will. The persons who inherit under the will are proponents of the will and defend it against such an attack. This proceeding is known as a will contest. If the people who oppose the admission of the will to probate are successful, the testator's estate will be distributed according to the laws of descent and distribution or the provisions of an earlier will, depending on the facts of the case.

Competent Testator A competent testator is a person who is of sound mind and requisite age at the time that he makes the will, not at the date of his death when it takes effect. Anyone over a minimum age, usually 18, is legally capable of making a will as long as he is competent. A person under the minimum age dies intestate (regardless of efforts to make a will), and his property will be distributed according to the laws of descent and distribution.

An individual has testamentary capacity (sound mind) if he is able to understand the nature and extent of his property, the natural objects of his bounty (to whom he would like to leave the estate), and the nature of the testamentary act (the distribution of his property when he dies). He must also understand how these elements are related so that he can express the method of disposition of property.

A testator is considered mentally incompetent (incapable of making a will) if he has a recognized type of mental deficiency, such as a severe mental illness. Mere eccentricities, such as the refusal to bathe, are not considered insane delusions, nor are mistaken beliefs or prejudices about family members. A person who uses drugs or alcohol can validly execute a will as long as he is not under the influence of drugs or intoxicated at the time he makes the will. Illiteracy, old age, or severe physical illness do not automatically deprive a person of a testamentary capacity, but they are factors to be considered along with the particular facts of the case.

Execution of Wills

Every state has statutes prescribing the formalities to be observed in making a valid will. The requirements relate to the writing, signing, witnessing, or attestation of the will in addition to its publication. These legislative safeguards prevent tentative, doubtful, or coerced expressions of desire from controlling the manner in which a person's estate is distributed.

Writing Wills usually must be in writing but can be in any language and inscribed with any material or device on any substance that results in a permanent record. Generally, most wills are printed on paper to satisfy this requirement. Many states do not recognize as valid a will that is handwritten and signed by the testator. In states that do accept such a will, called a holographic will, it usually must observe the formalities of execution unless exempted by statute. Some jurisdictions also require that such wills be dated by the testator's hand.

Signature A will must be signed by the testator. Any mark, such as an X, a zero, a check mark, or a name intended by a competent testator to be his signature to authenticate the will, is a valid signing. Some states permit another person to sign a will for a testator at the testator's direction or request or with his consent.

Many state statutes require that the testator's signature be at the end of the will. If it is not, the entire will may be invalidated in those states, and the testator's property will pass according to the laws of descent and distribution. The testator should sign the will before the witnesses sign, but the reverse order is usually permissible if all sign as part of a single transaction.

Witnesses Statutes require a certain number of witnesses to a will. Most require two, although others mandate three. The witnesses sign the will and must be able to attest (certify) that the testator was competent at the time he made the will.


Though there are no formal qualifications for a witness, it is important that a witness not have a financial interest in the will. If a witness has an interest, his testimony about the circumstances will be suspect because he will profit by its admission to probate. In most states such witnesses must either "purge" their interest under the will (forfeit their rights under the will) or be barred from testifying, thereby defeating the testator's testamentary plan. If, however, the witness also would inherit under the laws of descent and distribution should the will be invalidated, he will forfeit only the interest in excess of the amount he would receive if the will were voided.

Acknowledgment A testator is usually required to publish the will—that is, to declare to the witnesses that the instrument is his will. This declaration is called an acknowledgment. No state requires, however, that the witnesses know the contents of the will.

Although some states require a testator to sign the will in the presence of witnesses, the majority require only an acknowledgment of the signature. If a testator shows the signature on a will that he has already signed to a witness and acknowledges that it is his signature, the will is thereby acknowledged.

Attestation An attestation clause is a certificate signed by the witnesses to a will reciting performance of the formalities of execution that the witnesses observed. It usually is not required for a will to be valid, but in some states it is evidence that the statements made in the attestation are true.

Testator's Intent

For a will to be admitted to probate, it must be clear that the testator acted freely in expressing his testamentary intention. A will executed as a result of undue influence, fraud, or mistake can be declared completely or partially void in a probate proceeding.

Undue Influence Undue influence is pressure that takes away a person's free will to make decisions, substituting the will of the influencer. A court will find undue influence if the testator was capable of being influenced, improper influence was exerted on the testator, and the testamentary provisions reflect the effect of such influence. Mere advice, persuasion, affection, or kindness does not alone constitute undue influence.

Questions of undue influence typically arise when a will deals unjustly with persons believed to be the natural objects of the testator's bounty. However, undue influence is not established by inequality of the provisions of the will, because this would interfere with the testator's ability to dispose of the property as he pleases. Examples of undue influence include threats of violence or criminal prosecution of the testator, or the threat to abandon a sick testator.

Fraud Fraud differs from undue influence in that the former involves misrepresentation of essential facts to another to persuade him to make and sign a will that will benefit the person who misrepresents the facts. The testator still acts freely in making and signing the will.

The two types of fraud are fraud in the execution and fraud in the inducement. When a person is deceived by another as to the character or contents of the document he is signing, he is the victim of fraud in the execution. Fraud in the execution includes a situation where the contents of the will are knowingly misrepresented to the testator by someone who will benefit from the misrepresentation.

Fraud in the inducement occurs when a person knowingly makes a will but its terms are based on material misrepresentations of facts made to the testator by someone who will ultimately benefit.

Persons deprived of benefiting under a will because of fraud or undue influence can obtain relief only by contesting the will. If a court finds fraud or undue influence, it may prevent the wrongdoer from receiving any benefit from the will and may distribute the property to those who contested the will.

Mistake When a testator intended to execute his will but by mistake signed the wrong document, that document will not be enforced. Such mistakes often occur when a husband and wife draft mutual wills. The document that bears the testator's signature does not represent his testamentary intent, and therefore his property cannot be distributed according to its terms.

Special Types of Wills

Some states have statutes that recognize certain kinds of wills that are executed with less formality than ordinary wills, but only when the wills are made under circumstances that reduce the possibility of fraud.

Holographic Wills A holographic will is completely written and signed in the handwriting of the testator, such as a letter that specifically discusses his intended distribution of the estate after his death. Many states do not recognize the validity of holographic wills, and those that do require that the formalities of execution be followed.

Nuncupative Wills A nuncupative will is an oral will. Most states do not recognize the validity of such wills because of the greater likelihood of fraud, but those that do impose certain requirements. The will must be made during the testator's last sickness or in expectation of imminent death. The testator must indicate to the witnesses that he wants them to witness his oral will. Such a will can dispose of only personal, not real, property.

Soldiers' and Sailors' Wills Several states have laws that relax the execution requirements for wills made by soldiers and sailors while on active military duty or at sea. In these situations a testator's oral or handwritten will is capable of passing personal property. Where such wills are recognized, statutes often stipulate that they are valid for only a certain period of time after the testator has left the service. In other instances, however, the will remains valid.

Revocation of a Will

A will is ambulatory, which means that a competent testator may change or revoke it at any time before his death. Revocation of a will occurs when a person who has made a will takes some action to indicate that he no longer wants its provisions to be binding and the law abides by his decision.

For revocation to be effective, the intent of the testator, whether express or implied, must be clear, and an act of revocation consistent with this intent must occur. Persons who wish to revoke a will may use a codicil, which is a document that changes, revokes, or amends part or all of a validly executed will. When a person executes a codicil that revokes some provisions of a previous will, the courts will recognize this as a valid revocation. Likewise, a new will that completely revokes an earlier will indicates the testator's intent to revoke the will.

Statements made by a person at or near the time that he intentionally destroys his will by burning, mutilating, or tearing it clearly demonstrate his intent to revoke.

Sometimes revocation occurs by operation of law, as in the case of a marriage, divorce, birth of a child, or the sale of property devised in the will, which automatically changes the legal duties of the testator. Many states provide that when a testator and spouse have been divorced but the testator's will has not been revised since the change in marital status, any disposition to the former spouse is revoked.

Protection of the Family

The desire of society to protect the spouse and children of a decedent is a major reason both for allowing testamentary disposition of property and for placing limitations upon the freedom of testators.

Surviving Spouse Three statutory approaches have developed to protect the surviving spouse against disinheritance: dower or curtesy, the elective share, and community property.

Dower or curtesy At common law, a wife was entitled to dower, a life interest in one-third of the land owned by her husband during the marriage. Curtesy was the right of a husband to a life interest in all of his wife's lands. Most states have abolished common-law dower and curtesy and have enacted laws that treat husband and wife identically. Some statutes subject dower and curtesy to payment of debts, and others extend rights to personal property as well as land. Some states allow dower or curtesy in addition to testamentary provisions, though in other states dower and curtesy are in lieu of testamentary provisions.

Elective share Although a testator can dispose of his property as he wishes, the law recognizes that the surviving spouse, who has usually contributed to the accumulation of property during the marriage, is entitled to a share in the property. Otherwise, that spouse might ultimately become dependent on the state. For this reason, the elective share was created by statute in states that do not have community property.

Most states have statutes allowing a surviving spouse to elect either a statutory share (usually one-third of the estate if children survive, one-half otherwise), which is the share that the spouse would have received if the decedent had died intestate, or the provision made in the spouse's will. As a general rule, surviving spouses are prohibited from taking their elective share if they unjustly engaged in desertion or committed bigamy.

A spouse can usually waive, release, or contract away his statutory rights to an elective share or to dower or curtesy by either an antenuptial (also called prenuptial) or postnuptial agreement, if it is fair and made with knowledge of all relevant facts. Such agreements must be in writing.

Community property A community property system generally treats the husband and wife as co-owners of property acquired by either of them during the marriage. On the death of one, the survivor is entitled to one-half the property, and the remainder passes according to the will of the decedent.

Children Generally parents can completely disinherit their children. A court will uphold such provisions if the testator specifically mentions in the will that he is intentionally disinheriting certain named children. Many states, however, have pretermitted heir provisions, which give children born or adopted after the execution of the will and not mentioned in it an intestate share, unless the omission appears to be intentional.

Other Limitations on Will Provisions

The law has made other exceptions to the general rule that a testator has the unqualified right to dispose of his estate in any way that he sees fit.

Charitable Gifts Many state statutes protect a testator's family from disinheritance by limiting the testator's power to make charitable gifts. Such limitations are usually operative only where close relatives, such as children, grandchildren, parents, and spouse, survive.

Charitable gifts are limited in certain ways. For example, the amount of the gift can be limited to a certain proportion of the estate, usually 50 percent. Some states prohibit deathbed gifts to charity by invalidating gifts that a testator makes within a specified period before death.

Ademption and Abatement ademption is where a person makes a declaration in his will to leave some property to another and then reneges on the declaration, either by changing the property or removing it from the estate. Abatement is the process of determining the order in which property in the estate will be applied to the payment of debts, taxes, and expenses.

The gifts that a person is to receive under a will are usually classified according to their nature for purposes of ademption and abatement. A specific bequest is a gift of a particular identifiable item of personal property, such as an antique violin, whereas a specific devise is an identifiable gift of real property, such as a specifically designated farm.

A demonstrative bequest is a gift of a certain amount of property—$2,000, for example—out of a certain fund or identifiable source of property, such as a savings account at a particular bank.

A general bequest is a gift of property payable from the general assets of the testator's estate, such as a gift of $5,000.

A residuary gift is a gift of the remaining portion of the estate after the satisfaction of other dispositions.

When specific devises and bequests are no longer in the estate or have been substantially changed in character at the time of the testator's death, this is called ademption by extinction, and it occurs irrespective of the testator's intent. If a testator specifically provides in his will that the beneficiary will receive his gold watch, but the watch is stolen prior to his death, the gift adeems and the beneficiary is not entitled to anything, including any insurance payments made to the estate as reimbursement for the loss of the watch.

Ademption by satisfaction occurs when the testator, during his lifetime, gives to his intended beneficiary all or part of a gift that he had intended to give the beneficiary in her will. The intention of the testator is an essential element. Ademption by satisfaction applies to general as well as specific legacies. If the subject matter of a gift made during the lifetime of a testator is the same as that specified in a testamentary provision, it is presumed that the gift is in lieu of the testamentary gift where there is a parent-child or grandparent-parent relationship.

In the abatement process, the intention of the testator, if expressed in the will, governs the order in which property will abate to pay taxes, debts, and expenses. Where the will is silent, the following order is usually applied: residuary gifts, general bequests, demonstrative bequests, and specific bequests and devises.

Further Readings

Brown, Gordon W. 2003. Administration of Wills, Trusts, and Estates. 3d ed. Clifton Park, N.Y.: Thomson/Delmar Learning.


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