22.08 Wills

22.08.1

In General

A will is an instrument executed by a person, in the manner prescribed by statute, whereby the person who executes the same makes a disposition of that person's property to take effect on and after his death.

For centuries in England, the term "testament" referred only to a disposition of real estate; nowadays, and in common usage, the term "will," "last will," and "testament" are synonymous.

A "will" is in the nature of a conveyance by way of appointment and any devisee under a will takes by purchase.

The efficiency of any will depends upon:

  • The death of the testator.
  • The will being probated by a court of competent jurisdiction.

Until probated, a will cannot be used in evidence to establish title to real or personal property.

22.08.2

Concepts Pertaining To Wills

Administering Cum Testamento Annexo

A person appointed by the probate or surrogate court, or by the registrar of wills, in cases where a testator makes a will without naming any executor or where the executor who is named in the will is deceased, incompetent or refuses to act.

Bequeath:

To leave personal property to another by will.

Bequest:

A testamentary gift of personal property. The term sometimes has been held to include real property, also, if such appears to be the intention of the testator.

Codicil:

A codicil is a supplement to, or addition to, or qualification of an existing will made by the testator to alter, enlarge or restrain the provisions of the will.

A codicil must be executed with the same formalities as a will and be witnessed by the required number of disinterested person. Normally, a codicil will not revoke the entire will.

Co-executor:

One who is an executor with one or more others.

Conditional or Contingent Will:

A will which is dependent for its operation upon the happening of a specific condition or contingency.

Decedent:

A deceased person.

Devise:

A gift of real property by will. While the term "devise" is limited to testamentary gifts of real property and is distinguished from the term "bequest" in that a bequest is a testamentary gift of person property, the terms are sometimes uses loosely to denote testamentary gifts of real and personal property.

Devisee:

A person to whom a gift of real property is made by will.

Devisor:

One who bequeaths real property to another or others by will.

Estate:

The nature, degree, quantity and extent of interest which a person has in property. The property left by a decedent.

Executor:

A person appointed by a testator to carry out the directions and requests in the will, and to dispose of the property after his death according to this testamentary provisions. In some areas, the executor is known as "personal representative" and the executor's qualifications and authority are based on state law.

Executor' Deed:

A deed to property given by an executor to a new buyer.

Executor by Substitution:

A successor executor appointed by the testator and entitled to succeed to the administration or the estate following the resignation, failure to qualify, or death of the first executor.

Executory Devise:

An estate in real property which is to take effect in the future pursuant to the terms of a will. Under common law, an executory devise was void for failure to comply with the technical requirements covering future interests. Such devises now are generally valid if authorized by statute.

Executrix:

Feminine of "executor."

Holographic Will:

A "holographic" or "olographic" will is one that is entirely written, dated and signed by the testator in his or her own handwriting and which has not been witnessed.

Legacy:

A disposition of money or personal property by will.

Legatee:

A person to whom personal property is bequeathed in a will.

Letters Testamentary:

An instrument in writing granted by a probate (or surrogate) court, or any other official authority having jurisdiction over the probate of wills, empowering the executor named in a will to dispose of the estate in accordance with its terms. Letters testamentary make it known that the will in question has been properly proved and that the estate is in order to be settled.

Mystic Will:

Under the provisions of the Louisiana Civil Code, a "mystic will" is a closed or sealed will that is required by statute to be executed in a particular manner and to be signed (on the outside of the paper or the envelope containing it) by a notary, the testator and the witnesses.

Nuncupative Will:

A "nuncupative will" is not a formal will. It is a will declared orally by the testator before witnesses but dependent for validity, under some statutes upon being reduced to writing and subscribed by the witness after the speaking of the testamentary words. Such wills are generally limited in this country to the wills of soldiers in active service, and to mariners at sea. In some jurisdictions they are denied altogether. In others, they are allowed by persons in contemplation of death.

Generally, only personal property may be so bequeathed, and even more, some states fix definite limits to the value of property which may be disposed of by such wills. State law should be consulted in order to determine their legality and requirements in any particular jurisdiction.

Per Capita:

By the heads. According to the number of individuals. Share and share alike.

Per Stirpes:

By roots or stocks. In probate law, "per stirpes" means to take a share under the law of descent by right of representation, as opposed to taking per capita.

Pretermitted Heir:

The term "pretermit" means to fail to take note of a person; to omit a person, particularly one's child from one's will. a "pretermitted heir" is one who as a child or descendant of another would have shared in the estate of the latter if the latter had died intestate, but who is not named in, or provided or by, the will left by such ancestor.

Probate:

The formal judicial proceeding to prove or confirm the validity of a will.

Soldiers' and Seamans' Wills:

Under some statutes, a soldier or a seaman, under certain specific circumstances, is allowed the execution of an informal will disposing of personal property.

Testament:

Historically, a disposition of personal property effective upon the death of the testator, but in modern usage; nowadays, a will disposing of either real or personal property, or both kinds.

Testamentary Capacity:

Testamentary capacity concerns the ability of the individual testator and is to be distinguished from testamentary power which involves a privilege under the law. Generally, under modern statutes, a person of sound mind and otherwise competent has the capacity to dispose of his property according to his pleasure, unless in contravention of some statue or common law rule. The general power of testamentary disposition is founded on the assumption that a rational will is a better disposition than any that can be made by the law itself.

Testamentary Class:

Persons included and comprehended under some general description in a will, bearing certain relation to the testator, having a common relation to each other, sustaining the same relation to the bequest, or included together in a grouping made by the testator.

Testamentary Disposition:

In a broad sense, the disposition of property by deed, will, or otherwise, in such a manner that is shall not take effect unless or until the death of the grantor or testator.

Testamentary Power:

The right or privilege of disposing of property by will as accorded by statute in all jurisdictions. Testamentary power involves a privilege under state law.

Testamentary Power of Sale:

A power contained in a will giving the executor or personal representative authority to sell real and personal property of the decedent.

Testamentary Trust:

A trust created by the provisions of a will.

Testamentary Trustee:

A trustee appointed by or acting under a will. A trustee appointed to carry out a trust created by a will.

Testate:

The estate or condition of leaving a will at death.

Testator:

One who dies leaving a valid will.

Testatrix:

A female maker of a will.

Will Contest:

A proceeding having for its purpose to determine the validity and eligibility of a will which has been admitted to probate. The contested proceedings are not usually held in the probate or surrogate court, but in a trial court.

22.08.3

What Law Governs Wills

Law at the Time of Execution of the Will or at the Testator's Death

Ordinarily, the validity of a will or of a provision thereof, as regards restrictions on the power of testamentary disposition, is determined according to the law in effect at the time of the testator's death rather than that in force when the will was executed, unless it appears that the law in force at the testator's death, which is embodied in a statute enacted between the date of the execution of the will and the time of the testator's death, was intended to apply only to wills subsequently executed.

Law of the Jurisdiction Where the Land is Located or Law of the Testator's Domicile

To the extent that if affects real property, the capacity to make a will, and its requisites and validity, are governed by the law of the jurisdiction where the land is situated, and not by the law of the testator's domicile.

In many states, however, statutes have been enacted allowing the probate of wills executed in conformity with the law of other statutes, or admitting to record such foreign wills. Such statutes make effective foreign wills, if valid by the law of the state where executed, even though the property is in another state and the will does not conform to the law of such latter state.

22.08.4

Statutory Regulations Pertaining To Wills

The right, power and capacity to either executed a will or take under a will are not natural rights but privileges accorded by the state and subject to its controls and regulations.

Local law must be fully examined in order to ascertain their existence, nature, validity requirements, and extent.

22.08.5

Property Which May Be Bequeathed Or Devised

Any person is permitted to make by his will any disposition of his property not inconsistent with the law or contrary to the policy of the state. However, a testator can bequeath or devise only such property as he owns at the time of his death. The property to be bequeathed or devised does not necessarily need to be owned by the testator at the time of the execution of the will.

22.08.6

Surviving Spouse

In some jurisdictions, the surviving spouse is a statutory heir of the deceased spouse; however, in some others, this does not seem to be the case.

Irrespective of the above possibility and in regard to dower rights, curtesy rights, and marital rights, the surviving spouse is usually granted certain statutory rights, allowances or shares in the deceased spouse's estate.

22.08.7

Pretermitted Children

In many jurisdictions, a pretermitted child is protected by statute by permitting him to take the same share in his parent's estate that he would take if the parent had died intestate, unless it appears that the omission was intentional.

22.08.8

Admission Of The Will To Probate

In order for a will to become operative, it must be filed in the proper court and admitted to probate. The court having the power to admit wills to probate is variously designated as a probate, surrogate, or orphan's court. Probate of a will simply involves establishing to the court's satisfaction that the will is genuine, that it has been signed and witnessed as require by law, and that the testator was of sound mind at the time of its execution. When this proof has been made, the court will enter an order finding that the will is, in fact, the testator's last will and testament. This constitutes admission of the will to probate.

(See "Decedent's Estates 4.04 and Guardianship and Conservatorship Procedures 7.12")