Duhaime's Law Dictionary


Will Definition:

A written statement, usually signed, made by an individual, which directs the distribution of their property when they die.

Related Terms: Testator, Executor, Personal Representative, Probate, International Law, Testamentary Capacity, Unnatural Will, Codicil, Holograph Will, Bequeath or Bequests, Testament, Suspicious Circumstances, Intestate, Lost Will, Administrator, Memorandum of Articles, Precatory Words

In a book by Virgil Harris, this quote is attributed to a "Mr. Remsen":

"A will is an ex-parte document and is written from one point of view; it is the expression of the wishes of the testator regarding the work of a lifetime; upon its legality depends the future happiness and welfare of the persons and objects most dear to the testator ; and whether viewed from a property or a family standpoint, it is often the most important document a man of large or small means is ever called upon to prepare."

Duhaime's Famous Wills logo In Del Grande v Sebastien (1999) 27 ETR 2d 295, the Ontario Court endorsed this definition:

"A will is a document which is of no effect until the testator's death and until then is a mere declaration of his intention and is at all times until such death subject to revocation or variation.  The execution of a will leaves the testator free during his life to dispose of his property as he pleases and operates subject to any such disposition inter vivos; and, on the other hand, a person named as a beneficiary in a will takes no interest whatever under it until the death of the testator and he will not then take any interest unless he is alive at that time."

In California Jurisprudence, 3rd edition:

"A will is an instrument in or by virtue of which a qualified person legally and intentionally directs the disposition of his or her property, to become effective only following the death of the person."

In one 1911 case, Smith v Smith, Justice Cardwell of the Supreme Court of Virginia described a will as:

"The legal declaration of a person's mind as to the manner in which he would have his property or estate disposed of after his death; the written instrument, legally executed, by which a man makes disposition of his estate, to take effect after his death."

Jurisdictions intentionally define wills differently because some require that the testator engage in a series of formal procedures such as witnessing or notarizing; others are content to enforce even a holograph will.

For example, Montana's 2007 Code, Chapter 72 (re "Probate"; at data.opi.state.mt.us/bills/mca/72/2/72-2-522.htm), modelled on the uniform probate code of the United States, defines a will as follows (extract only):

"A will must be in writing, signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction, and signed by at least two individuals, each of whom signed within a reasonable time after having witnessed either the signing of the will ... or the testator's acknowledgement of that signature or acknowledgement of the will.

"A will that does not comply with (the above) ... is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.

"Intent that the document constitute the testator's will may be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting."

We refer again to Virgil Harris' 1911 book:

"In short, a will may be a man's monument or his folly. Prudence, therefore, demands that the testator plan wisely, and frame his testamentary provisions with great care. That is, he should, if possible, use such words that his plan shall not be misunderstood and shall be carried into effect without dispute or litigation, for unlike instruments between living persons, it is only after the testator is dead and cannot explain his meaning that his will can take effect, or be open to dispute."

Law professor Karen Sneddon of the Mercer School of Law penned these very accurate words in her 2013 article published in the Elder Law Journal:

"A Will is one of the most personal documents an individual ever executes."

See also codicil or probate.

REFERENCES:

  • California Jurisprudence, 3rd Ed.(West, 2006)
  • Del Grande v Sebastien, 27 ETR 2d 295 (1997)
  • Harris, Virgil, Ancient, Curious and Famous Wills (Boston: Little, Brown and Company, 1911), page 3.
  • Smith v Smith, 70 SE 491
  • Sneddon, Karen, The Will as a Personal Narrative, 20 Elder L.J. 355 2012-2013

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