Duhaime's Law Dictionary


Testament Definition:

A document to take effect upon the death of the author and in which his or her chattels are transferred to a new owner.

Related Terms: Will

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Wharton defines a testament as:

"A disposition of personal property to take place after the owner's decease, according to his desire and direction."

In Halsbury's Laws of England, Fifth Edition (2010, Volume 102, Wills and Intestacy), the editors wrote:

"It has been said that the expressions will and testament are synonymous and freely used in our law, although by the civil law, an instrument was only said to be a testament where an executor was appointed and, when there was none, a codicil.

"By the common law, where land or tenements were devised in writing, albeit there was no executor named, the instrument was properly called a last will, and whereit only concerned chattels, a testament."

In Fuller v Hooper, Justice Hardwicke wrote in classic legalese:

"A will is to be considered in two lights, as to the testament and the instrument.

"The testament is the result and effect in point of law, of what is the will; and that consists of all the parts. And a codicil is then a part of the will, all making but one testament: but it may be made at different times and different circumstances, and therefore there may be a different intention at making one and the other."

REFERENCES:

  • Fuller v Hooper, 2 Ves Sen 242 (1751)
  • Wharton, John Jane Smith, Law Lexicon, or Dictionary of Jurisprudence: Explaining All the Technical Words and Phrases Employed in the Several Departments of English Law, including also the Various Legal Terms Used in Commercial Transactions; Together with an Explanatory as well as Literal Translation of the Latin Maxims Contained in the Writings of the Ancient and Modern Commentators (Harrisburg, Pennsylvania: M'Kinley and Lescure, 1848 - from the London edition), page 1003.

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