A will is a gift of property that is to take effect on the giver’s death unless the gift is revoked by the giver prior to that time. It is often referred to as a last will and testament. The party making the will is known as the testator if male; testatrix, if female. A deceased person is spoken of as a decedent. A gift of land by will is called a devise. A party receiving such gift is called devisee. A bequest is a gift of personal property by will. A legacy is a gift of money or other person property by will. A party receiving a legacy is called a legatee. A party who dies leaving a will is said to die intestate if without a will, intestate.
Testamentary capacity
Only persons of sound mind and of legal age are permitted to dispose of property by will. Persons who execute a will must have the mental capacity to understand the nature and character of their property and to realize that they are making a will. They should also know who the persons are who would naturally be the beneficiaries of their affection – such as a spouse, children or other members of their family. People do not have to be in perfect mental health, however. Because people are sometimes in ill health when they make a will, the law does not expect them to possess even the same level of mental capacity as is required to execute a contract.
A will procured by fraud or undue influence is not accepted as a valid will. Lack of testamentary capacity and undue influence are the most common grounds that persons who are excluded from or are unhappy with the provisions of a will use to challenge it. In assessing a claim of undue influence, the court looks to see whether a bequest appears to be made on the basis of natural affection or of some improper influence. The actions of fiduciaries such as attorneys are scrutinized carefully, particularly for improper influence. This is especially true if the fiduciaries are not related to the deceased person, were made beneficiaries, and had a critical role in preparing the will.
Execution of a will
Unless a will is executed with the formalities required by state law, it is void. The courts are strict in interpreting statutes concerning the execution of wills. If a will is declared void, the property of the deceased person will be distributed according to the provisions of state laws. The required formalities vary from state to state, and the laws of the states that may affect a will should be consulted before a will is executed. Formalities required by many states are:
- The will must be in writing
- It must be witnessed by two or three disinterested witnesses – persons who do not stand to take any property under the will
- It must be signed by the testator or at his direction
- It must be published by the testator – as a general rule all that is required for publication is a declaration by the testator, at the time of signing that the instrument is his will.
- The testator must sign in the presence and in the sight of the witnesses; and
- The witnesses must sign in the presence and in the sight of the testator and in the presence and in the sight of each other.
If the statutory formalities are not all complied with, the will is not valid. As a general rule, an attestation clause, stating the formalities that have been followed in the execution of the will is written following the testator’s signature. The informal wills may be holographic wills or nuncupative wills.
Holographic wills: Holographic wills are wills that are entirely written and signed in the testator’s handwriting. For a holographic will to be valid in the states that recognize them, it must evidence testamentary intent and must actually be handwritten by the testator.
Testator: The age at which a person may make a will varies from country to country. In many countries the age is lower for females than males and is higher for will of land than it is for wills of personal property. In order to be able to make a valid will, the testator must be of sound mind. Soundness of mind is difficult to define. A person may be quite peculiar and eccentric and still be legally of sound mind. All that is required is that he has sufficient mental ability to know and remember who are the natural objects of his bounty [that is know the person to whom he would be naturally expected to leave his property such as his wife and children, to comprehend the kind or character of his property and to make disposition of that property according to some plan formed in his mind.
- Components of a Will
- Description of property
- Signature
- Witnesses
