Will (law)

In the law, a will or testament is a documentary instrument by which a person regulates the rights of others over his property or family after his death. For the devolution of property not disposed of by will, see inheritance and intestacy. In strictness will is a general term whilst testament applies only to dispositions of personality, but this distinction is seldom observed.

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. Legal systems which are based upon Roman law, such as those of Scotland, France and Quebec, known as civil law systems allow whole estates to be alienated only where the deceased leaves no widow or near relatives. In France, this restriction has met with condemnation from eminent legal and economical authorities.

Table of contents

1 History (to 1911) 2 Nineteenth Century English Law 3 Guardianship 4 Married Woman 5 Alien 6 Soldiers and Sailors 7 Will made under power 8 Registration 9 United States 10 France (as of 1911) 11 Germany (as of 1911) 12 International Law

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 ecclesiasticss versed in Roman law. In India, the will was unknown before English conquest; in law of Moses and in ancient Athens the will, if it existed at all, was of a very rudimentary character. The same is the case with the Leges barbarorum, where they are unaffected by Roman law. The will is, on the other hand, recognized by Rabbinical and Islamic law.

The early Roman will differed from the modern will in important respects. It was effectual during the lifetime of the person who made it; it was made in public, all knew of the legator's intentions; and it could not be changed. The objective, as in adoption, was to secure the perpetuation of the family. This was done by securing the due vesting of the breed in a person who could be relied upon to keep up the family rites. There is much probability in the conjecture that a will was only allowed to be made when the testator had no known gentile relatives, uless they had waived their rights.

It is certain from the text of Gaius that the earliest forms of will were those made in the comitia calata and those made in procinctu, or on the eve of battle. The former were published before the comitia, as representative of the patrician genies, and were originally a legislative act. These wills were the peculiar privilege of patricians. At a later time the form of plebeian will developed (irs/amentum per aes ci libram), and the law of succession under testament was further modified by the influence of tile practor, especially in the direction of recognition of fideicommissa similar in some respects to testamentary trusts. Codicilli or informal wills, also came into use, and were sufficient for almost every purpose but the appointment of an heir.

In the time of Justinian a will founded partly on the jus civile, partly on the edict of the praetor, partly on imperial constitutions and so called testamentum tripertitum, was generally in use. The main points essential to its validity were that the testator should possess testamentary capacity, and that the will should be signed or acknowledged by the testator in the presence of seven witnesses, or published orally in open court. The witnesses must be idonci, or free from legal disability. For instance, women and slaves were not good witnesses.

The whole property of the testator could not be alienated. The rights of heirs and descendants were protected by enactments which secured to them a legal minimum, the querela inofficiosi testamenhi being the remedy of those passed over. The age at which testamentary capacity began was fourteen in the case of males, twelve in the case of females. Up to 439 A.D. a will must have been in Latin; after that date Greek was allowed.

Certain persons, especially soldiers, were privileged from observing the ordinary forms. The liability of the heir to the debts of the testator varied during different periods. At first it was practically unlimited. The law was then gradually modified in favour of the heir, until in the time of Justinian the heir who duly made an inventory of the property of the deceased was liable only for the assets to which he had succeeded. This limitation of liability is generally termed by the civilians beneficium inventarii.

Something like the English probate is to be found in the rules for breaking the seals of a will in presence of the praetor. Closely connected with the will was the donatio mortis causa, the rules of which have been as a whole adopted in England (see below). An immense space in the Corpus juris is occupied with testamentary law. The whole of part v. of the Digest (books xxviii.-xxxvi.) deals with the subject, and so do a large number of constitutions in the Code and Novels.

The effect of Christianity upon the will was very marked. For instance, the duty of bequeathing to the Church was inculcated as early as Constantine, and heretics and monks were placed under a disability to make a will or take gifts left by will. A will was often deposited in a church. The canon law follows the Roman law with a still greater leaning to the advantage of the Church. No Church property could be bequeathed. Manifest usurers were added to the list of those under disability. For the validity of a will it was generally necessary that it should be made in the presence of a priest and two witnesses, unless where it was made in pias causes. The witnesses, as in Roman law, must be done. Gifts to the Church were not subject to the deductions in favour of the heir and the children necessary in ordinary cases. In England, the Church succeeded in holding in its own hands for centuries jurisdiction in testamentary matters.

This is practically in accordance with the definition of Modestinus in Digest xxviu. I, 1, voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit. Ancient Law, chap. vi. dii. ioi.

The Roman law of wills has had considerable effect upon English law. In the words of Sir H. Maine, "The English law of testamentary succession to personalty has become a modified English form of the dispensation under which the inheritances of law. Ronian citizens were administered." At the same time there are some broad and striking differences which should be borne in mind. The following among others (as of 1911) may be noticed:

1. A Roman testator could not, unless a soldier, die partly testate, and partly intestate. The will must stand or fall as a whole. This is not the case in England.
2. There is no one in English law to whom the unirersitasfuris of the testator descends as it did to the Roman heres, whose appointment was essential to the validity of a formal will, and who partook of the nature of the English heir, executor, administrator, devisee and legatee.
3. The disabilities of testators differed in the two systems. The disability of a slave or a heretic is peculiar to Roman law, of a youth between fourteen and twenty-one to English law.
4. The whole property may he disposed of in England; but it was not so at Rome, where, except by the wills of soldiers, children could not be disinherited unless for specified acts of misconduct. During the greater part of the period of Roman law the heir must also have had his Falcidian fourth in order to induce him to accept the inheritance.
5. In English law all wills must conform to certain statutory requirements; the Romans recognized from the time of Augustus an informal will called codicilli. The English codicil has little in common with this but the name, It is not an informal will, but an addition to a will, read as a part of it, and needing the same fornialities of execution.
6. The Roman tegatum applied to both movables and immovables; in England a legacy or bequest is a gift of personalty only, a gift of real estate being called a devise.
7. The Roman will spoke from the time of making; the English speaks from the time of death. This difference becomes very important in case of alteration in the position of the testator between the making of the will and his death, As a rule the Roman will could not, the English can, pass after-acquired property.

It became the law after the Conquest, according to Sir E Coke, that an estate greater than for a term of years could be disposed of by will, tinless in Kent, where the custom of gavelkind Real prevailed, and in some manors and boroughs (especially property, the City of London), where the pre-Conquest law was preserved by special indulgence. The reason why devise of land was not acknowledged by law was, no doubt, partly to discourage deathbed gifts in mortmain, a view supported by Glanvill, partly because the testator could not give the devisee that seisin which was the principal element in a feudal conveyance. By means of the doctrine to uses, however, the devise of land was secured by a circuitous method, generally by conveyance to feoffees to uses in the lifetime of he (cuff or to such uses as he should appoint by his will. Up to comparatively recent times a will of lands still bore traces of its origin in the conveyance to uses inter vivos. On the passing of the statute of Uses lands again became non-devisable, with a saving in the statute for the validity of wills made before May 1 1536. The inconvenience of this state of things soon began to be felt, and was probably aggravated by the large amount of land thrown into the market after the dissolution of the monasteries. As a remedy an act was passed in 1540, and a further explanatory act in 1542-1543.

The effect of these acts was to make lands held in fee simple devisable by will in writing, to the extent of two-thirds where the tenure was by knight service, and the whole where it was in socage. Corporations were incapacitated to receive, and married women, infants, idiots and lunatics to devise. An act of 1660, by abolishing tedure by knight service, made all lands devisable, In the same reign the Statute of Frauds (1677) dealt with the formalities of execution. Up to this time simple notes, even in the handwriting of another person, constituted a sufficient will, if published by the testator as such. The Statute of Frauds renuired, inter alia, that all devises should be in writing, signed by the testator or by some person for him in his presence and by his direction, and should also be subscribed by three or four credible witnesses. The strict interpretation by the courts of the credibility of witnesses led to the passing of an act in 1751-1752, making interested witnesses sufficient for the due execution of the will, but declaring gifts to them void. The will of a man was revoked by marriage and the birth of a child, of a woman by marriage only. A will was also revoked by an alteration in circumstances, and even by a void conveyance inter aims of land devised by the will made subsequently to the tiate of tile will, which was presumed to be an attempt by the grantor to give legal effect to a change of intention. As in Roman law, a will spoke froni the time of the making, so that it could not avail to pass after-acquired property without republication, which was equivalent to making a new will, Copyholds were not devisable before 1815, but were usually surrendered to the,use of the will of the copyhold tenant; an act of 1815 made them devisable simply. Devises of lands have gradually been made liable to the claims of creditors by a series of statutes beginning with the year 1691.

The history of wills of personalty was considerably different, but to some extent followed parallel lines. In both cases partial preceded complete power of disposition. The general opinion of the best authorities is that by the common law Personal of England a man could only dispose of his whole personal property. property if he left no wife or children; if he left either wife or children he could only dispose of one-half, and one-third if he left both wife and children. The shares of wife and children were called their pars rationabilis. This pars rationabilis is expressly recognized in Magna Carta and was sued for by the writ de rationabili parte. At what period the right of disposition of the whole personalty superseded the old law is uncertain. That it did so is certain, and the places where the old rule still existed--the province of York, Wales and the City of London--were regarded as exceptions. The right of bequest in these places was not assimilated to the general law until comparatively recent times by acts passed between 1693 and 1726. A will of personalty could be made by a male at fourteen, by a female at twelve. The formalities in the case of wills of personalty were not as numerous as in the case of wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the gift was of 30 or more, to the restrictions contained in the Statute of Frauds. The witnesses to a written will need not be "credible," and it was specially enacted by an act of 1705 that any one who could give evidence in a court of law was a good witness to a will of personalty. A will entirely in tile testator's handwriting, called a holograph will, was valid without signature. At one time the executor was entitled to the residue in default of a residuary legatee. But the Executors Act 1830 made him in such an event trustee for the next of kin.

Jurisdiction over wills of personalty was till 1858 in the ecclesiastical courts, probate being granted by the diocesan court if the goods of the deceased lay in the same diocese, in the provincial court of Canterbury (the prerogative court) or York (the chancery court) if the deceased had bone notabilia, that is, goods to the value of £5 in two dioceses. The ecclesiastical jurisdiction was of a very ancient origin. It was fully established under Henry II, as it is mentioned by Glanvill. In the city of London wills were enrolled in the Court of Hustings from 1258 to 1688 after having been proved before the ordinary. Contested cases before 1858 were tried in the provincial court with an appeal originally to the Court of Delegates, later to the judicial committee of the privy council, There were also a few special local jurisdictions, courts baron, the university coufts, and others, probably for the most part survivals of the pre-Conquest period, when wills seem to have been published in the county court. The ecclesiastical courts had no jurisdiction over wills of land, and the common law courts were careful to keep the ecclesiastical courts within their limits by means of prohibition. No probate of a will of land was necessary, and title to real estate by will might be made by production of the will as a document of title. The liability of the execrator and legatee for the debts of the testator has been gradually established by legislation. In general it is limited to the amount of the succession. Personal liability of the executor beyond this can by the Statute of Frauds only be established by contract in writing.

Nineteenth Century English Law

Such were the principal stages in the history of the law as it affected wills made before 1838 or proved before 1858. The principal acts now in force are the Wills Act 1837, the amending act of 1852, the Court of Probate Act 1857, the Judicature Acts 1873 and 1875 and the Land Transfer Act 1897. All but theacts of 1837 and 1852 deal mainly with what happens to the will after death, whether under the voluntary or contentious jurisdiction of the Probate Division. Some of the earlier acts are still law, though of little importance since the more modern and comprehensive enactments.

The testamentary jurisdiction of the archdeacon's court is alluded to by Chaucer in the "Friar's Tale," but it was afterwards completely superseded by the bishop's court.

The earliest on the statute roll is an act of Henry III (1236), enabling a widow to bequeath the crops of her lands. Before the Wills Act uniformity in the law had been urgently recommended by the Real Property Commissioners in 1833. It appears from their report that at the time of its appearance there were ten different ways in which a will might be made under different circumstances.

The act of 1837 affected both the making and the interpretation of wills. Excluding the latter for the present, its main provisions were these. All property, real and personal, and of whatever tenure, may be disposed of by will. If customary freeholds or copyholds be devised, the will must be entered on the court rolls. No will made by any person under the age of twenty-one is valid. Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. It is usual for the testator and the witnesses to sign every sheet. Publication is not necessary. A will is not void on account of the incompetency of a witness. Gifts to a witness or the husband or wife of a witness are void. A creditor or executor may attest. A will is revoked (except where made in exercise of a power of appointment of a certain kind) by a later will. or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances. Alterations in a will must be executed and attested as a will. A will speaks from the death of the testator, unless a contrary intention appear. An unattested document may be, if properly identified, incorporated in a will, but such a document, if executed subsequently to the will, is inoperative.

Rules of interpretation or construction depend chiefly on decisions of the courts, to a smaller extent on statutory enactment. The law was gradually brought into its present condition through precedents extending back for centuries, especially decisions of the court of chancery, the court par excellence of construction, as distinguished from the court of probate. The court of probate did not deal unless incidentally with the meaning of the will; its jurisdiction was confined to seeing that it was duly executed. The present state of the law of interpretation is highly technical. Some phrases have obtained a conventional meaning which the testaters who used them probably did not dream of. Many of the judicial doctrines which had gradually become established were altered by the Wills Act.

These provisions of the act have since that time themselves become the subject of judicial decision. Among other provisions are these, most of them to take effect only in the absence of a contrary intention. A residuary devise is to include estates coitiprised in lapsed and void devises. A general gift of the testator's lands is to include copyholds and leaseholds. A general gift of real or personal estate is to include real or personal estate over which the testator had a general power of appointment. A devise without words of limitation is to pass the fee simple. The words "die without issue," or similar words, are to mean die without issue living at the time of the death of the person whose issue was named, not as before the act, an indefinite failure of issue, an estate tail being thus created. Trustees under an unlimited devise are to take the fee simple. Devises of estates tail are not to lapse if the devisce, though he predeceased the testator. left issue inheritable under the entail. Gifts to children or other issue leaving issue living at the testator's death are not to lapse. Rules of interpretation founded on principles of equity independent of statute are very numerous, and for them the works devoted to the suoject must be consulted. Some of the more important, stated in as general a form as possible, are these. The intention of the testator is to be observed. This rule is called by Sir E Coke the pole star to guide the judges. There is a presumption against intestacy, against, double portions, against constructing merely precatory words to import a trust, etc. One part of the will is to he expounded by another. Interlineations and alterations are presumed to have been made after, not as in deeds before, execution. Words are supposed to be used in their strict and primary sense. Many words and phrases, however, such as "money," "residue" and "issue" and other words of relationship, have become invested with a technical meaning, but there has been a recent tendency to include illegitimate children in a gift to "children." Evidence is admissible in certain cases to explain latent ambiguity, and parol evidence of the terms of a lost will may be given as in the famous case of Sugden v. Lord St Leonards (1876), 1 Prob. Div. 154.

A will may be void, in whole or in part, for many reasons, which may be divided into two great classes, those arising from external circumstances and those arising from the will itself. The main examples of the former class are revocation by burning, tearing, etc., by a later will, or by marriage of the testator (except as below), incapacity of the testator from insanity, infancy or legal disability (such as being a convict), undue influence and fraud, any one of which is ground for the court to refuse or revoke probate of a will, A will being ambulatory is always revocable, unless in one or two exceptional instances. Undue influence is a ground upon which frequent attempts are made to set aside wills. Its nature is well explained in a judgment of Lord Penzance's: "Pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. There is nothing corresponding to the querela inofficiosi testamenti, but unnatural provisions may be evidence of mental defect. The circumstances appearing on the face of the will which make it open to objection may either avoid it altogether or create a partial intestacy, the will remaining good as a whole. Where the will is not duly executed, e.g. if it is a forgery or if it is not signed by the testator or the proper number of witnesses, the will is not admitted to probate at all. Where it contains devises or bequests bad in law, as in general restraint of marriage, or tending to create perpetuities, or contrary to public policy, or to some particular enactment, only the illegal part is void. A remarkable instance is a well-known case in which a condition subsequent in a devise was held void as against public policy, being a gift over of the estate devised in case the first devisee, the eldest son of an earl, did not before his death obtain the lapsed title of duke of Bridgewater.

There are some wills of an exceptional kind which demand special notice. The King. It was resolved in parliament in Richard II's reign (1392) that the king, his heirs and successors, might lawfully make their testaments.i in some later cases parliamentary authority has been given to royal wills, in others not. The executors of Henry IV were confirmed in their office by letters patent of Henry V, those of Henry V by parliament. The largest testamentary powers ever conferred on an English king were given to Henry VIII by an act of 1533-1534, empowering him to limit and appoint the succession to the crown by will, in default of children by Jane Seymour or any future wife. By 39 & 40 Geo. III c. 88 the king and his successor may devise or bequeath their private property. No court, however, has jurisdiction to grant probate of the will of a king.

Guardianship

As a general rule wills deal with property, but even at common law a will simply appointing a guardian was good. In English law, fathers were allowed to dispose of the custody of unmarried infant children by will by an act of 1860. The Guardianship of Infants Act 1886 extended such powers in certain cases to the mother. (This article does not yet have information on English guardian law after 1911.)

In the United States (in the 21st century), wills can be used to nominate guardians for minor children, bu
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