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WILL, or TESTAMENT
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WILL, or TESTAMENT , the legal documentary See also:instrument by which a See also:person regulates the rights of others over his See also:property or See also:family after his See also:death.' For the See also:devolution of property not disposed of by will, see See also:INHERITANCE, See also:INTESTACY. In strictness " will " is a See also:general See also:term whilst " testament " applies only to dispositions of personalty; but this distinction is seldom observed. The conception of freedom of disposition by will, See also:familiar as it is in See also:modern See also:England, is by no means universal. In fact, See also:complete freedom is the exception rather than the See also:rule. Legal systems which are based upon See also:Roman See also:law, such as those of See also:Scotland and See also:France, allow the whole property 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. R. T. Troplong, for instance, held that " un peuple n'est pas libre, s'il n'a pas le See also:droit de See also:tester, et la liberte du testament est la plus grande preuve de la liberte civile." 2 See also:History.—The will, if not purely Roman in origin, at least owes to Roman law its complete development—a development which in most See also:European countries was greatly aided at a later See also:period Roman by ecclesiastics versed in Roman law. In See also:India, See also:accord- laµ, See also:ing to the better See also:opinion, it was unknown before the See also:English See also:conquest; in the See also:Mosaic law and in See also:ancient See also:Athens the will, if it existed at all, was of a very rudimentary See also:character. The same is the See also:case with the Leges barbarorum, where they are unaffected by Roman law. The will is, on the other See also:hand, recognized by Rabbinical and Mohammedan law. The See also:early Roman will, as See also:Sir H. See also:Maine shows, ' differed from the modern will in most important respects. It was at first effectual during the lifetime of the person who made it; it was made in public; and it was irrevocable. Its See also:original See also:object, like that of See also:adoption, was to secure the perpetuation of the family. This was done by securing the due vesting of the hereditas in a person who could be relied upon to keep up the family See also:rites. There is much See also:probability in the conjecture that a will was only allowed to be made when the testator had no gentiles discoverable, or when the gentiles had waived their rights. It is certain from the See also:text of See also:Gaius 4 that the earliest forms of will were those made in the See also:comitia calata and those made in procinctu, or on the See also:eve of See also:battle. The former were published before the comitia, as representative of the patrician gentes, and were originally a legislative See also:act. These See also:wills were the See also:peculiar See also:privilege of See also:patricians. At a later See also:time See also:grew up a See also:form of plebeian will (testamentum per aes et libram), and the law of See also:succession under testament was further modified by the See also:influence of the See also:praetor, especially in the direction of recognition of fideicommissa or testamentary See also:trusts. Codicilli or informal wills, also came into use, and were sufficient for almost every purpose but the See also:appointment of an See also:heir. In the time of Justinian a will founded partly on the See also:jus civile, partly on the See also:edict of the praetor, partly on imperial constitutions and so called testamentum tripertitum, was generally in use. The See also: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 See also:court. The witnesses must be idonei, or See also:free from legal See also:disability. For instance, See also:women and slaves were not See also: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 testamenti being the remedy of those passed over. The See also:age at which testamentary capacity began was fourteen in the case of See also:males, twelve in the case of See also:females. Up to A.D. 439 a will must have been in Latin; after that date See also:Greek was allowed. Certain persons, especially soldiers, were privileged from observing the See also:ordinary forms. The liability of the heir to the debts of the testator varied at different periods. At first it was practically unlimited. Then the law was gradually modified in his favour, until in the time of Justinian the heir who duly made an See also:inventory of the property of the deceased was liable only to the See also:assets to which he had succeeded. This See also:limitation of liability is generally termed by the civilians beneficium inventar'ii. Something like the English See also:probate is to be found in the rules for breaking the See also: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 See also:juris is occupied with testamentary law. The whole of See also:part v. of the See also:Digest (books See also:xxviii.-See also:xxxvi.) deals with the subject, and so do a large number of constitutions in the See also:Code and Novels.
The effect of See also:Christianity upon the will was very marked. For instance, the See also:duty of bequeathing to the See also: early as See also:Constantine, and heretics and monks were placed under a disability to make a will or take gifts See also:left by will. A will was often de- posited in a church. The See also:canon law follows the Roman law canon with a still greater leaning to the See also:advantage of the Church. la" . No Church property could be bequeathed. See also:Manifest usurers were added to the See also: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 See also:priest and two witnesses, unless where it was made in pias causes. The witnesses, as in Roman law, must be idonei. Gifts to the Church were not subject to the deductions in favour of the heir and the See also:children necessary in ordinary cases. In England the Church succeeded in holding in its own hands for centuries See also:jurisdiction in testamentary matters. The Roman law of wills has had considerable effect upon English law. In the words of Sir H. Maine, " The English law of testa- mentary mentary succession to personalty has become a modified form of the See also:dispensation under which the inheritances of law. Roman citizens were administered." 2 At the sarne time there are some broad and striking See also:differences which should be See also:borne in mind. The following among others may be noticed. (1) A Roman testator could not, unless a soldier, See also: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 universitas uris 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, See also: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 be disposed of in England; but It was not so at See also: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 See also:fourth in See also:order to induce him to accept the inheritance. (5) In English law all wills must conform to certain statutory requirements; the See also:Romans recognized from the time of See also:Augustus an informal will called codicilli. The English See also:codicil has little in See also: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 formalities of See also:execution. (6) The Roman legatum applied to both movables and immovables; in England a See also:legacy or See also:bequest is a See also:gift of personalty only, a gift of real See also: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. See also:Liberty of See also:alienation by will is found at an early period in England. To See also:judge from the words of a law of Canute, intestacy appears to have been the exception at that time.' How far the liberty extended is uncertain; it is the opinion of some authorities that complete disposition of See also:land and goods was allowed, of others that limited rights of wife and children were recognized. However this may be, after the Conquest a distinction, the result of See also:feudalism, to use a convenient if inaccurate term, arose between real and See also:personal property. It will be convenient to treat the history of the two kinds of will separately. It became the law after the Conquest, according to Sir E. See also:Coke,' that no estate greater than for a term of years could be disposed of by will, unless in See also:Kent, where the See also:custom of See also:gavelkind Real prevailed, and in some manors and boroughs (especially property. the See also:City of See also:London), where the pre-Conquest law was preserved by See also:special See also:indulgence. The See also:reason why devise of land was not acknowledged by law was, no doubt, partly to discourage death-See also:bed gifts in See also:mortmain, a view supported by See also:Glanvill, partly because the testator could not give the devisee that See also:seisin which was the See also:principal See also:element in a feudal See also:conveyance. By means of the See also:doctrine et uses, however, the devise of land was secured by a circuitous method, generally by conveyance to feoffees to uses in the lifetime of the See also:feud or to such uses as he should appoint by his will (see See also:TRUST).' p to comparatively See also:recent times a will of lands still See also:bore traces of its origin in the conveyance to uses inter vivos. On the passing of the See also:statute of Uses lands again became non-devisable, with a saving in the statute for the validity of wills made before the 1st of May 1536. The inconvenience of this See also:state of things soon began to be See also:felt, and was probably aggravated by the large amount of land thrown into the See also:market after the See also:dissolution of the monasteries. As a remedy an act was passed in 1540, and a further explanatory act in 1542-1543. 1 Most of the law is contained in See also:Decretals, iii. 26, " De Testamentis." 2.1ncient Law, chap. vi. ' The distinction between bequest and devise did not always exist. For instance, the See also:Assize of See also:Northampton, c. 4, speaks of a devise (ditisa) of chattels (see BEQUEST). See also:Secular See also:Laws, c. 68. 2 Inst. 7. e Many instances of such conveyances occur in Sir See also:Harris See also:Nicolas' Testamenta vetusta and in Fifty Earliest English Wills (1387-1439), edited by Dr F. J. See also:Furnivall in 1882. The effect of these acts was to make lands held in See also:fee See also:simple devisable by will in See also:writing, to the extent of two-thirds where the See also:tenure was by See also:knight service, and the whole where it was in See also:socage. Corporations were incapacitated to receive, and married women, infants, idiots and lunatics to devise. An act of 1660, by abolishing teriure by knight service, made all lands devisable. In the same reign the Statute of Frauds (1697) dealt with the formalities of execution. Up to this time simple notes, even in the See also: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 See also: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 See also:man was revoked by See also:marriage and the See also:birth of a See also:child, of a woman by marriage only. A will was also revoked by an alteration in circumstances, and even by a void conveyance inter vivos of land devised by the will made subsequently to the date of the will, which was presumed to be an See also:attempt by the grantor to give legal effect to a See also:change of intention. As in Roman law, a will spoke from the time of the making, so that it could not avail to pass after-acquired property without republication, which was See also:equivalent to making a new will. Copyholds were not devisable before 1815, but were usually surrendered to the use of the will of the See also:copyhold See also:tenant; an act of 1815 made them devisable simply. Devises of lands have gradually been made liable to the claims of creditors by a See also:series of statutes beginning with the See also:year 1691. The history of wills of personalty was considerably different, but to some extent followed parallel lines. In both cases partial preceded complete See also: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-See also: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 See also: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 See also:province of See also:York, See also: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 See also: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 See also:evidence in a court of law was a good See also:witness to a will of personalty. A will entirely in the testator's handwriting, called a holograph will, was valid without See also:signature. At one time the executor was entitled to the See also:residue in See also:default of a residuary legatee. But the Executors Act 183o made him in such an event trustee for the next of See also:kin.
Jurisdiction over wills of personalty was till 1858 in the ecclesiastical courts, probate being granted by the diocesan court r if the goods of the deceased See also:lay in the same See also:diocese, in the provincial court of See also:Canterbury (the See also:prerogative court) or York (the See also:chancery court) if the deceased had See also:bona 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 See also: There were also a few special See also:local jurisdictions, courts See also:baron, the university courts, and others, probably for the most part survivals of the pre-Conquest period, when wills seem to have been published in the See also: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 See also:prohibition. No probate of a will of land was necessary, and See also:title to real estate by will might be made by See also:production of the will as a document of title. The liability of the executor 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 See also:contract in writing. Modern 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 testamentary jurisdiction of the See also:archdeacon's court is alluded to by See also:Chaucer in the " See also:Friar's See also:Tale," but it was afterwards completely superseded by the See also:bishop's court. the Judicature Acts 1873 and 1875 and the Land See also:Transfer Act 1897. All but the acts of 1837 and 1852 See also:deal mainly with what happens to the will after death, whether under the voluntary or contentious jurisdiction of the Probate See also:Division (see PROBATE). Some of the earlier acts are still law, though of little importance since the more modern and comprehensive enactments. The earliest on the statute See also: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 See also:report' that at the time of its See also: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 See also: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 See also: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 See also:sheet. Publication is not necessary. A will is not void on See also:account of the incompetency of a witness. Gifts to a witness or the See also: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 See also: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 See also:condition through precedents extending back for centuries, especially decisions of the court of chancery, the court See also: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 testators who used them probably did not See also: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 See also:absence of a contrary intention. A residuary devise is to include estates comprised 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 See also:lapse if the devisee, though he pre-deceased the testator. left issue inheritable under the See also: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 See also:equity See also:independent of statute are very numerous, and for them the See also:works devoted to the subject 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 See also:pole See also:star to See also:guide the See also:judges. There is a presumption against intestacy, against See also:double portions, against constructing merely precatory words to import a trust, &c. 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 See also:primary sense. Many words and phrases, however, such as " See also: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 See also:ambiguity, and parol evidence of the terms of a lost will may be given as in the famous case of Sugden v. See also:Lord St Leonards (1876), I Prob. Div. 154. A will may be void, in whole or in part, for many reasons, which may be divided into two See also:great classes, those arising from See also:external circumstances and those arising from the will itself. The main 3 Fourth Report, p. 12.
2 By § i of the act the word " will " includes codicil.examples of the former class are revocation by burning, tearing, &c., by a later will, or by marriage of the testator (except as below), incapacity of the testator from See also:insanity, See also:infancy or legal disability (such as being a convict), undue influence and See also:fraud, any one of which is ground for the court to refuse or revoke probate of a will, A will being See also: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 See also:judgment of Lord See also: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 See also:species of See also:restraint under which no valid will can be made."3 There is nothing corresponding to the querela inofficiosi testamenti, but unnatural provisions may be evidence of See also:mental defect. The circumstances appearing on the See also: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 See also: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 See also: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 See also:earl, did -not before his death obtain the lapsed title of See also:duke of See also:Bridgewater.'
There are some wills of an exceptional kind which demand special See also:notice. The See also: III. c. 88 the king and his successor may devise or bequeath their private property.' No court, however, has jurisdiction to See also: See also:Alien.—Before 187o an alien enemy See also:resident in England could only dispose of property by will with the king's licence. The See also:Naturalization Act 187o enables him to do so as fully as a natural-See also:born See also:British subject. But if he be an alien domiciled abroad he cannot avail himself of Lord See also:Kingsdown's Act (see below). Soldier and Sailor—Wills of soldiers in actual military service, and of sailors, are subject to special legislation, and are excepted from the operation of the Wills Act. The privilege only applies to wills of personal estate. Such wills may usually be made when the testator has attained the age of fourteen, and are not revoked by marriage only but by marriage and the birth of a child. Wills of soldiers on an expedition may be made by unattested writing or by nuncupative testament before two witnesses. Wills of See also:petty See also:officers and See also:seamen in the See also:navy, and of See also:marines, as far as relates to their pay or See also:prize-money, must be attested by an officer, and wills made by a See also:seaman in the See also:merchant service must, if made at See also:sea, be attested by the See also:master or See also:mate, if made on land by a See also:superintendent of a See also:mercantile marine office, a See also:minister of See also:religion, See also:justice of the See also:peace, or consular or customs officer. See the Merchant See also:Shipping Act 1894, s. 177. The wills of prisoners of See also:war are subject to special regulations, and the See also:Admiralty may at its discretion waive
3 See also: 1 Prob. 481. ' See also:Egerton v. Earl Brownlow, 4 See also:House of Lords Cases, 210. ' 4 Inst. 335• See the Collection of Royal Wills printed for the Society of Antiquaries by J. See also:Nichols 1780). the due execution of wills in other instances. The effects of seamen, marines and soldiers, killed or dying in the service, are exempt from duty. Pay, See also:wages, prize money and See also:pensions due to persons employed in the navy may be paid out without probate where the whole assets do not exceed X32. The See also:Board of See also:Trade may at its discretion dispense with probate of the will of a merchant seaman whose effects do not exceed £5o in value. By an act passed in 1868 the existing exemptions are extended to the sum of £See also:loo in the case of See also:civil service pay or annuities, of civil or military allowances See also:charge-able to the See also:army votes, and of army prize money. Will made under power.—A will made under a power of appointment is not revoked by marriage when the real or personal estate thereby appointed would not in default of appointment pass to the testator's executor or administrator or to the next of kin. Before the Wills Act a will exercising a power of appointment had to conform to any special requisitions in the power, but since the act the power is duly exercised if executed and attested like an ordinary will. See also:Registration.—In the See also:register counties memorials of wills affecting lands in those counties must he registered. Member of friendly society, &c.—Members of friendly, See also:industrial and provident See also:societies, depositors in savings See also:banks, and servants in certain public offices, may under the See also:pro visions of numerous acts make a nomination to an amount not exceeding ltoo. Such nomination is practically equivalent to a will and may be made at the age of sixteen. At common law there could be no See also:larceny of a will of lands. But now by the Larceny Act of 1861 stealing, injuring or concealing a will, whether of real or personal estate, is punishable with penal See also:servitude for See also:life. Forgery of a will (at one time a See also:capital See also:crime) renders the offender liable to the same See also:penalty. Fraudulent concealment of a will material to the title by a vendor or mortgagor of land or chattels is, by the Law of Property See also:Amendment Act 1859, a See also:misdemeanour punishable by See also:fine or imprisonment or both. It should be noticed that a contract to make a will containing pro-visions in favour of a certain person or certain persons is valid if it fulfil the requirements of the law regulating contract. A good example is Synge v. Synge (1894) I K.B. 466.
For death duties see ESTATE DUTY, LEGACY, SUCCESSION DUTY.
The principal authorities for the English law are, for the formalities, Sir E. V. See also:Williams, Executors; Holdsworth and Vickers, Law of Succession; J. Williams, Wills and Succession; for the construction, the works of Sir See also: The main difference between the law of the two countries is that in Ireland a bequest for masses Ireland, for the repose of the testator's soul is valid, provided that the masses be public, in England such a bequest is void as tending to superstitious uses. Up to 1868 wills of immovables were not allowed in Scotland. The usual means of obtaining disposition of heritage after death was a Scotland. trust disposition and See also:settlement by See also:deed de praesenti, under which the truster disponed the property to trustees according to the trusts of the settlement, reserving a life See also:interest. Thus something very similar to a testamentary disposition was secured by means resembling those employed in England before the \Vills Act of Henry VIII. The main disadvantage of the trust disposition was that it was liable to be overthrown by the heir, who could reduce ex capite lecti all voluntary deeds made to his See also:prejudice within sixty days of the death of his ancestor. In 1868 the Titles to Land Consolidation Act made it competent to any owner of lands to See also:settle the succession to the same in the event of death by testamentary or mortis causa deeds or writings. In 1871 reduction ex capite lecti was abolished. A will of immovables must be executed with the formalities of a deed and registered to give title. The disability of a woman as a witness was removed by the Titles to Land Consolidation Act. As to wills of movables, there are several important points in which they differ from corresponding wills in England, the influence of Roman law being more marked. Males may make a will at fourteen, females at twelve. A nuncupative legacy is good to the amount of £100 Scots (£8, 6s. 8d.), and a holograph testament is good without witnesses, but it must be signed by the testator. differing in this from the old English holograph. By the Conveyancing Act 1874 such a will is presumed to have been executed on the date which it bears. Not all movables can be left, as in England. The movable property of the deceased is subject to jus relictae and legifim. See McLaren, Wills and Succession, for the law, and Judicial Styles for styles. See also:United States.—By the constitutions of many states laws giving effect to informal or invalid wills are forbidden. The age of testamentary capacity varies very much. Eighteen is a common one. Full liberty of disposition is not universal. See also:Home-steads generally, and See also:dower estates frequently, are not devisable. In some states only a disposable portion of the property can be left, so that children cannot be disinherited without good cause, and in some children omitted in a will may still taketheir See also:share. It is frequently provided that a certain amount must be left to the widow. See also:Louisiana follows See also:French law, by which the testator can under no circumstances alienate by will more than half his property if he leave issue or ascendants. In some states a married woman may not leave more than half her property away from her husband. Some require the husband's consent and subscription to make the will of a married woman valid. Nuncupative and holograph wills are in use. The former are confined to personalty and must generally be reduced to writing within a See also:short time after the words are spoken. In. Louisiana the mystic or sealed will still exists. The number of witnesses necessary for the validity of a will of any kind is usually two, sometimes three. Wills of soldiers and sailors are privileged, as in England. There are several decisions of state courts that belief in See also:spiritualism does not of itself constitute testamentary incapacity. See Jarman, See also:American edition by See also:Randolph and Talcott. France.—The law is mainly contained in ss. 967-1074 of the Code Civil. Wills in France may be of three kinds: (1) holograph, which must be wholly written, dated and signed by the testator; (2) made as a public instrument, i.e. received by two notaries before two witnesses or by one See also:notary before four witnesses; this form of will must be dictated by the testator and written by the notary, must be read over to the testator in the presence of the witnesses and must be signed by testator and witnesses; (3) mystic, which are signed by the testator, then closed and sealed and delivered by him to a notary before six witnesses; the notary then draws up an account of the proceedings on the instrument which is signed by the testator, notary and witnesses. Legatees and their See also:blood relations to the fourth degree may not be witnesses. Nuncupative wills are not recognized. Soldiers' and sailors' wills are subject to special rules as in most other countries. Full liberty of disposition only exists where the testator has no ascendants or descendants, in other cases his pantile disponible is subject to reserve; if the testator has one child he may only dispose of half his estate, if two only one-third, if three or more only one-fourth; if he has no descendants but ascendants in both lines he may dispose of half, if ascendants in one See also:line only he may dispose of three-fourths. The full age of testamentary capacity is twenty-one years, but minors over the age of sixteen may dispose by will of half of the estate of which they could dispose had they been of full age. There is no restriction against married women making wills. A contract to dispose of the succession is invalid, s. 791. The codes of the Latin races in See also:Europe are in general accordance with the French law. See also:Germany.—Most of the law will be found in the Burgsrliches Gesetzbuch, ss. 2064-2273. A holograph will, either single or See also:joint, is allowed. Other wills must be declared before a judge or notary or (outside Germany) a See also:consul. Two witnesses are required, unless the witness be a notary or the registrar of the court, who is sufficient alone. The formalities may be relaxed in certain cases, such as imminent death, a state of See also:siege, a prevailing epidemic, &c. Descendants, ascendants and the husband and wife, are entitled to compulsory portions (pfRichtteilsberechtigt). But those prima facie entitled may be deprived of their share for certain specified kinds of misconduct. A See also:con-See also:tract to make any specified testamentary disposition is in-operative. But a contract of inheritance (Erbvertrag) made inter vivos by See also:direct disposition is valid in certain cases and will operate on the death of the contractor. The modes of revocation are much the same as in England (except marriage). But there is one peculiar to Germany, the inconsistency of a will with an Erbvertrag; in such an event the will is wholly or pro See also:Canto revoked. See also:International Law.—There are three main directions which the opinion of jurists and the practice of courts have taken. (1) The whole property of the testator may be subjected to the law of his domicil. To this effect is the opinion of See also:Savigny and the See also:German practice. Certain modifications have been made by modern law, especially by the Einfiihrungsgesetz of 1896. (2) The property may be subjected to the law of the See also:place where it happens to be at the 658 See also:WILLARD- time of the testator's death. (3) The movable property may be subjected to the law of the domicil. the immovable (including leaseholds) to the law of the place where it is situate, the lex loci rei sitae. England and the United States follow this rule. Testamentary capacity is generally governed by the law of the testator's domicil at the time of his death, the form of the instrument in most countries either by the law of his domicil or the law of the place where the will was made, at his See also:option. The old rule of English law was to allow the former alternative only. The law was altered for the United See also:Kingdom in 1861 by the Wills Act 1861 (known as Lord Kingsdown's Act), by which a will made out of the United Kingdom by a British subject .is, as far as regards personal estate, good if made according to the forms required by the law of the place where it was made, or by the law of the testator's domicil at the time of making it, or by the law of the place of his domicil of origin. Subsequent change of domicil does not avoid such a will. Another act passed on the same See also:day, the See also:Domicile Act 1861, enacted that by See also:convention with any See also:foreign See also:government foreign domicil with regard to wills could not be acquired by a testator without a year's See also:residence and a written See also:declaration of intention to become domiciled. By the same act foreign consuls may by convention have certain authority over the wills and property of subjects of foreign states dying in England. In the United States some states have adopted the narrow policy of enacting by statute the old common law rule, and providing that no will is valid unless made in the form required by the law of the state of the testator's domicil. The capacity of the testator, revocation and construction of a will, are governed by the law of the domicil of the testator at the time of his death—except in cases affected by Lord Kingsdown's Act, as he must be supposed to have used See also:language in consonance with that law, unless indeed he See also:express himself in technical language of another See also:country. A good instance is Groos' Case (1904), Prob. 269, where it was held that the will of a Dutch woman (at the time of her death domiciled in England) duly made in See also: A will duly executed abroad is generally required to be clothed with the authority of a court of the country where any property affected by the will is situate. (J. Additional information and CommentsThere are no comments yet for this article.
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