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Encyclopedia > Will (law)
The Law of Wills, Trusts and Inheritance
Part of the common law series
Wills
Wills  · Holographic will
Joint wills and mutual wills  · Will contract
Codicils
Parts of a Will
Attestation clause  · Residuary clause
Incorporation by reference
Contesting a Will
Testamentary capacity  · Undue influence
Insane delusion  · Fraud
Problems of property disposition
Lapse and anti-lapse
Ademption  · Abatement
Acts of independent significance
Elective share  · Pretermitted heir
Trusts
The Law of Trusts
Generic Terms:
Express trust  · Constructive trust
Resulting trust
Common Types of Trust:
Bare trust  · Discretionary trust
Accumulation and Maintenance trust
Interest in Possession trust
Charitable trust  · Purpose trust
Incentive trust
Other Specific Types of Trust:
Protective trust  · Spendthrift trust
Life insurance trust  · Remainder trust
Life interest trust  · Reversionary interest trust
Honorary trust  · Asset-protection trust
Special needs trust: (general)/(U.S.)
Doctrines governing trusts
Pour-over will  · Cy-près doctrine
Other related topics
Living Wills (advance directives)
Inheritance
Intestacy  · Testator  · Probate
Power of appointment
Simultaneous death  · Slayer rule
Disclaimer of interest
Other areas of the Common Law
Contract law  · Tort law  · Property law
Criminal law  · Evidence

In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. For the devolution of property not disposed of by will, see inheritance and intestacy. In the strictest sense, "will" is a general term, while "testament" applies only to dispositions of personal property (this distinction is seldom observed). A will is also used as the instrument in a trust. Image File history File links Gnome-globe. ... Image File history File links This is a lossless scalable vector image. ... Lady Justice or Justitia is a personification of the moral force that underlies the legal system (particularly in Western art). ... This law-related article does not cite its references or sources. ... This article or section does not adequately cite its references or sources. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... A holographic will is a will and testament that has been entirely handwritten and signed by the testator. ... -1... A will contract is a term used in the law of wills describing a contract to exchange a current performance for a future bequest. ... A codicil is a document that amends, rather than replaces, a previously executed will. ... In the statutory law of wills and trusts, an attestation clause is a clause that is typically appended to a will, often just below the place of the testators signature. ... A residuary estate, in the law of wills, is any portion of the testators estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails. ... Incorporation by reference is a doctrine of the common law of wills by which a person may state in his will that certain property is to be disposed of by a seperate document, describing the place where the document will be found. ... A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). ... In the common law tradition, testamentary capacity is the legal term of art used to describe a persons legal and mental ability to make a valid will. ... Undue influence (as a term in jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person. ... An insane delusion is the legal term of art in the common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence to the contrary. ... Lapse and anti-lapse are complementary concepts under the law of wills, which address the disposition of property that is willed to someone who dies before the testator (the writer of the will). ... Ademption is a term used in the law of wills to determine what happens when property bequested under a will is no longer in the testators estate when the testator dies. ... Abatement (derived through the French abattre, from the Late Latin battere, to beat), a beating down or diminishing or doing away with; a term used especially in various legal phrases. ... The doctrine of acts of independent significance, in the common law of wills, permits the testator to effectively change the disposition of her property without changed her will, if acts or events with relation to the property itself have some significance beyond avoiding the requirements of the will. ... An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedents will. ... A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not know or did not know of the party at the time the will... This law-related article does not cite its references or sources. ... This law-related article does not cite its references or sources. ... Where property is passed to a person but no gift is made, it is held for the owner, this is the Resulting trust; where property should for some reason of public policy or fairness or rule of Equity be held for someone other than the legal owner, this is either... A trust is a legal relationship where one person, the trustee, holds assets for the benefit of another person, a beneficiary. ... A resulting trust is a type of implied trust created through implication of law where the actions of the parties involved and the nature of the transaction implies an intention to create a trust. ... A bare trust is one in which the beneficiary has a right to both income and capital and may call for both to be remitted into their own name, they are also entitled to take actual ownership and control of the trust property. ... A discretionary trust[1] is a trust where the beneficiaries and/or their entitlements to the trust fund are not fixed, but are determined by the criteria set out in the trust instrument by the settlor. ... This law-related article does not cite its references or sources. ... An interest in possession trust is the most common example of a life interest trust. ... A charitable trust is a trust established for charitable purposes. ... A purpose trust is a kind of trust which has no beneficiaries, but instead exists for advancing some non-charitable purpose of some kind. ... In American estate planning parlance, an incentive trust is a trust designed to encourage or discourage certain behaviors by using distributions of trust income or principal as an incentive. ... The Protective Trust is a form of settlement found in England and Wales and several Commonwealth countries. ... A spendthrift trust is a trust that is created for the benefit of a person who is in debt (often because they are unable to control their spending) that gives an independent trustee full authority to make decisions as to how the trust funds may be spent for the benefit... In the U.S., proper ownership of life insurance is important if the insurance proceeds are to escape federal estate taxation. ... An honorary trust, under the law of trusts, is a device by which a person establishes a trust for which there is neither a charitable purpose, nor a private beneficiary to enforce the trust. ... An asset-protection trust is a term which covers a wide spectrum of legal structures. ... Special Needs Trusts are created to ensure that beneficiaries who are developmentally disabled or mentally ill can receive inheritances without losing access to essential government benefits. ... Please wikify (format) this article as suggested in the Guide to layout and the Manual of Style. ... In common law legal systems, a trust is a contractual relationship in which a person or entity (the trustee) has legal title to certain property (the trust property or trust corpus), but is bound by a fiduciary duty to exercise that legal control for the benefit of one or more... A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his estate at the time of his death shall be placed in the trust. ... This article does not cite any references or sources. ... A living will, also called will to live, advance health directive, or advance health care directive, is a specific type of power of attorney or health care proxy or advance directive. ... Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her 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... A testator is a person who has made a legally binding will or testament, which specifies what is to be done with that persons penis family and/or property after death. ... Probate is the legal process of settling the estate of a deceased person; specifically, resolving all claims and distributing the decedents property. ... A power of appointment is a term most frequently used in the law of wills to describe the ability of the testator (the person writing the will) to select a person who will be given the authority to dispose of certain property under the will. ... Simultaneous death is a problem of inheritence which occurs when two people (usually a husband and wife) die at the same time in an accident. ... The slayer rule, in the common law of inheritance, is a doctrine that prohibits inheritence by a person who murders someone from whom they stand to inherit. ... Disclaimer of interest (also called a renunciation), in the law of inheritance, wills and trusts, is a term that describes an attempt by a person to renounce their legal right to benefit from an inheritance (either under a will or through intestacy) or through a trust. ... A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. ... In the common law, a tort is a civil wrong for which the law provides a remedy. ... This article or section does not cite any references or sources. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... The law of evidence governs the use of testimony (e. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... A testator is a person who has made a legally binding will or testament, which specifies what is to be done with that persons penis family and/or property after death. ... This article or section does not cite any references or sources. ... a family of Ouagadougou, Burkina Faso in 1997 Family is a Western term used to denote a domestic group of people, or a number of domestic groups linked through descent (demonstrated or stipulated) from a common ancestor, marriage or adoption. ... This article or section does not adequately cite its references or sources. ... This article or section does not adequately cite its references or sources. ... Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her 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... In common law legal systems, a trust is a contractual relationship in which a person or entity (the trustee) has legal title to certain property (the trust property or trust corpus), but is bound by a fiduciary duty to exercise that legal control for the benefit of one or more...

Contents

Freedom of disposition

The conception of 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". Motto (French) God and my right Anthem No official anthem specific to England — the anthem of the United Kingdom is God Save the Queen. See also Proposed English National Anthems. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Civil law or Continental law or Romano-Germanic law is the predominant system of law in the world. ... Forced heirship is a reference to the testamentary laws which limit the discretion of the testator to distribute assets under a will or codicil on death. ...


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) International recognition Civil unions and Domestic partnerships Recognized in some regions Unregistered co-habitation Recognition debated See also Same-sex marriage Civil union Registered partnership Domestic partnership Timeline of same-sex marriage Listings by country This box:      Same-sex marriage is a term for a governmentally, socially, or religiously recognized... As unregistered cohabitation Recognised in some regions Recognised prior to legalisation of same-sex marriage Netherlands (nationwide) (1998) Spain (12 of 17 communities) (1998) South Africa (nationwide) (1999) Belgium (nationwide) (2000) Canada (QC, NS and MB) (2001) Recognition debated See also Same-sex marriage Registered partnership Domestic partnership Common-law... A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ... Incapacity is a term of law that refers to a persons lack of capacity to engage in certain actions to which legal consequences attach. ... Undue influence (as a term in jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person. ...


Requirements for the creation of a will

Any person over the age of majority can draft his own will without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but every will must contain the following: This article does not cite any references or sources. ...

  • 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 must declare that he revokes all previously-made wills and codicils. Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.
  • The testator must demonstrate that he has the capacity to dispose of his property, 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). In some jurisdictions, for example Kentucky,[1] the spouse of a beneficiary is also considered an interested witness.
  • 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.

After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will, i.e., whether it satisfied the legal requirements, and to appoint an executor. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. A codicil is a document that amends, rather than replaces, a previously executed will. ... Official language(s) English[1] Capital Frankfort Largest city Louisville Area  Ranked 37th  - Total 40,444 sq mi (104,749 km²)  - Width 140 miles (225 km)  - Length 379 miles (610 km)  - % water 1. ... Probate is the legal process of settling the estate of a deceased person; specifically, resolving all claims and distributing the decedents property. ... A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ... An executor is a person named by a maker of a will to carry out the directions of the will. ...


Although there is no legal requirement that a will be drawn up by a lawyer, there are many pitfalls into which home-made wills may fall, and it is highly desirable that any will is the subject of legal advice before drafting or execution. 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 no room for mistake.


A very 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 states recognize a holographic will, made out entirely in the testator's own hand. A minority of states even recognize the validity of nuncupative wills. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service. A holographic will is a will and testament that has been entirely handwritten and signed by the testator. ... This article or section does not cite its references or sources. ...


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 England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them in the court's discretion. Community property is a marital property regime that originated in civil law jurisdictions, and is now also found in some common law jurisdictions. ...


It is not only a good idea but also essential 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. This is not a consideration in English law, which provides that all such expenses will fall on the estate in any case. Probate is the legal process of settling the estate of a deceased person; specifically, resolving all claims and distributing the decedents property. ... Warren Burger at a press conference in May 1969 shortly after he was nominated to be Chief Justice of the United States. ...


Revocation

Methods and effect

The intentional physical destruction of a will by the testator will revoke it. This could be accomplished by the testator deliberately burning or tearing the physical document itself, or even by striking out the signature. Most jurisdictions allow partial revocation 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 death. Antonym of psychical. ... For the similarly-named Surrealist journal, see Documents (journal). ... John Hancocks signature is one of the most prominent on the United States Declaration of Independence. ...


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 heirs will instead inherit by intestate succession. Revocation is the act of recalling or annulling, the reversal of an act, the recalling of a grant, or the making void of some deed previously existing. ... Intestacy refers to the body of common law that determines who is entitled to the property of a dead person in the absence of a last will and testament or other binding declaration. ...


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 will have the effect that the former spouse is treated as if they had died before the testator and so will not benefit. Motto (French) God and my right Anthem No official anthem specific to England — the anthem of the United Kingdom is God Save the Queen. See also Proposed English National Anthems. ... This article is about the country. ... “Spouse” redirects here. ... Revocation is the act of recalling or annulling, the reversal of an act, the recalling of a grant, or the making void of some deed previously existing. ... In common law, a rebuttable presumption is an assumption that is made that will stand as a fact unless someone comes forward to contest it and prove otherwise. ... A testator is a person who has made a legally binding will or testament, which specifies what is to be done with that persons penis family and/or property after death. ... The term statement can have several meanings: In programming, a statement is an instruction to execute something that will not return a value. ... Contemplation comes from the latin root for temple, and means to enter an open or consecrated place. ...


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. Negligence is a legal concept usually used to achieve compensation for accidents and injuries. ... This article does not cite any references or sources. ... Probate is the legal process of settling the estate of a deceased person; specifically, resolving all claims and distributing the decedents property. ...


Dependent relative revocation

Many jurisdictions exercise an equitable doctrine known as dependent relative revocation. 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. The Court of Chancery, London, early 19th century This article is about the concept of equity in the jurisprudence of common law countries. ...


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 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."


Wills in history

Some wills have unusual wishes. 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. Another famous case, Estate of Kidd involved a will found on a deceased Arizona prospector who left his entire $250,000 estate "for research or some scientific proof of a soul of the human body which leaves at death. I think in time there can be a photograph of a soul leaving the human at death." Charles Vance Millar (1853 - October 31, 1926) was a Canadian lawyer and financier. ... The Great Stork Derby was a period from 1926 to 1936 where women in Toronto competed to produce the most babies. ... Official language(s) English Spoken language(s) English 74. ...


Though most people are aware they need a will, as many as 66% of Americans, according to Consumer Reports, don't have one. Among the notables who died without either a valid will or no will at all are Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, Howard Hughes, Martin Luther King, Jr., Tupac Shakur, Kurt Cobain, Buddy Holly, Lenny Bruce, Billie Holiday, Marvin Gaye, Sam Cooke, Cass Elliot, Sonny Bono, Tiny Tim, Karl Marx and Pablo Picasso. Consumer Reports is an American magazine published monthly by Consumers Union. ... For other uses, see Abraham Lincoln (disambiguation). ... Andrew Johnson (December 29, 1808 – July 31, 1875) was the seventeenth President of the United States (1865–1869), succeeding to the presidency upon the assassination of Abraham Lincoln. ... Ulysses S. Grant[2] (born Hiram Ulysses Grant, April 27, 1822 – July 23, 1885) was an American general and the eighteenth President of the United States (1869–1877). ... For the Welsh murderer, see Howard Hughes (murderer). ... “MLK” redirects here. ... Tupac Amaru Shakur (June 16, 1971 – September 13, 1996), also known by his stage names 2Pac, Makaveli, or simply as Pac, was an American artist renowned for his rap music, movie roles, poetry, and his social activism. ... Kurt Donald Cobain (Aberdeen, Washington, USA; February 20, 1967 – c. ... Charles Hardin Holley (September 7, 1936 – February 3, 1959),[1] better known as Buddy Holly, was an American singer, songwriter, and a pioneer of rock and roll. ... Lenny Bruce (October 13, 1925 – August 3, 1966), born Leonard Alfred Schneider, was a controversial American stand-up comedian, writer, social critic and satirist of the 1950s and 1960s. ... Billie Holiday (April 7, 1915 – July 17, 1959), born Eleanora Fagan and later called Lady Day was an American singer widely considered one of the greatest jazz voices of all time. ... Marvin Gaye (born Marvin Pentz Gay, Jr. ... This article does not cite any references or sources. ... For the member of the Texas House of Representatives, see Ellen Cohen. ... Salvatore Phillip Sonny Bono (February 16, 1935) – January 5, 1998) was an American record producer, singer, actor, and politician whose career spanned over three decades. ... Herbert Buckingham Khaury (April 12, 1932 – 30 November 1996), better known by the stage name Tiny Tim, was an American singer, ukulele player, and musical archivist. ... Karl Heinrich Marx (May 5, 1818 – March 14, 1883) was a 19th century philosopher, political economist, and revolutionary. ... “Picasso” redirects here. ...


The shortest known legal will in history is that of Bimla Rishi of Delhi, India. His will, dated February 9, 1995, is written in Hindi, translating as "all to son" and consisting of just four characters. A close second is the will of Karl Tausch, whose will of January 19, 1967 is in Czech and consists solely of the phrase vše ženě "all to wife". For other uses, see Delhi (disambiguation). ... is the 40th day of the year in the Gregorian calendar. ... Year 1995 (MCMXCV) was a common year starting on Sunday (link will display full 1995 Gregorian calendar). ... January 19 is the 19th day of the year in the Gregorian calendar. ... Year 1967 (MCMLXVII) was a common year starting on Sunday (link will display full calendar) of the 1967 Gregorian calendar. ...


Terminology used in Wills

  • A bequest is a gift of in the form of a stated amount of money.
  • A codicil is an amendment to a will.
  • A demonstrative legacy is a gift from a specific bank account, or a specified set of savings bonds, stock certificates, or other bonds.
  • A devise is special gift of real property in a will.
  • A devisee is a person who receives a devise.
  • Intestate means without a will; this is often seen in the phrase "to die intestate".
  • A legacy is a gift.
  • A legatee is a person who receives a legacy.
  • Testate means with a will.
  • The testator is a person who executes a will; that is, the person whose will it is.

Various denominations of currency, one form of money Money is any good or token that functions as a medium of exchange that is socially and legally accepted in payment for goods and services and in settlement of debts. ... A bank account is a monetary account with a banking institution recording the balance of money for a customer. ... Treasury Securities are bonds issued by the U.S. Treasury. ... This article does not cite any references or sources. ... Look up bond in Wiktionary, the free dictionary. ...

See also

Ademption is a term used in the law of wills to determine what happens when property bequested under a will is no longer in the testators estate when the testator dies. ... A testator is a person who has made a legally binding will or testament, which specifies what is to be done with that persons penis family and/or property after death. ... History (to 1911) The will, if not purely Roman in origin, at least owes to Roman law its complete development, a development which in most European countries was greatly aided at a later period by ecclesiastics versed in Roman law. ... United States In the 21st century, eighteen is the typical age of testamentary capacity. ...

Notes and references

  1. ^ Kentucky Revised Statutes § 394.210(2) (2006).

External links


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