Will (law)

I INTRODUCTION

Will (law), in law, disposition by an individual of his or her property, intended to take effect after death. A disposition of real property by will is termed a device; a disposition of personal property by will is termed a bequest. The person making a will, called the testator, must have testamentary capacity, that is, must be of full age and sound mind and must act without undue influence by others.

By statute, a will is generally required to be in writing, whether it disposes of real or personal property; a soldier or sailor in combat, however, may make a will orally. A written will must be signed at the end; a testator unable to write may make an X, and such a mark is considered a valid signature. Some countries require that a will be witnessed; others do not. In the United Kingdom, two people must witness the will, that is, they must sign the will as witnesses to the signature of the testator.

All witnesses to a will must be competent. A witness is considered incompetent if he or she is a beneficiary under the terms of the will; if one of the necessary witnesses is a beneficiary, the will is void. To remedy such situations it has generally, although not universally, been provided by statute that a bequest to a subscribing witness shall be void and that the will shall otherwise be valid. If the will was valid without the beneficiary’s attestation, the gift remains valid.

II ATTESTATION

An attestation clause, or a clause certifying the proper execution of the will, must usually be added to the testator’s signature. The following is a simple form of such a clause:

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Signed, sealed, published, and declared by Jane Doe, the testator,
as her last will and testament in the presence of us, who at her request and in her presence and in the presence of each other have hereunto subscribed
our names as witnesses.
A.B. residing at 1,000 X Street, Blank City
C.D. residing at 1,100 X Street, Blank City

As a rule, no particular form is prescribed by the various statutes for the preparation of a will so long as the testator’s intent is in writing.

III REVOCATION

A will is revocable until the testator’s death. The only exception to this occurs when two parties simultaneously make mutually irrevocable wills in which they name one another as their respective beneficiaries and expressly give up the right to revoke their wills. A testator may revoke his or her will by destroying it, either by burning or tearing it up or by obliterating the signature. Any part or the whole of the will may be revoked by a codicil, or an amendment to the will, executed with the same statutory formalities as the will itself.

A valid later will revoke a prior will. Disposition of property by the testator before death, as by gift or sale, is not strictly a revocation of the will, although its effect may be similar to one.

The marriage of the testator subsequent to the date of execution of the will revokes the will as to the surviving spouse or children, who are entitled to the same rights in the estate as if the testator had died intestate, that is, without leaving a will.

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IV PROBATE

No disposition of an estate is made after the testator’s death until the will is proved (a process called probate). The probate of a will is a court proceeding upon notice to the heirs and next of kin. Questions frequently arise regarding the construction of the terms of a will. The most important rule of construction is that the intention of the testator as it appears from the will shall be carried out whenever legally possible; when the will is ambiguous, the circumstances surrounding its execution may be examined in order to ascertain the testator’s intention.

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