Business Law (part 64)

The best way to get a bad law repealed is to enforce it strictly.

Abraham Lincoln

Wills, Inheritances, and Trusts

(part A)

 by

 Charles Lamson

Title to all property, both real and personal, may be transferred by a will. A will is an instrument prepared in the form prescribed by law that provides for the disposition of a person's property and takes effect after death. The property left by a person who has died is called the estate.

The person making the will is called a testator (testatrix if a woman). Testators do not have to meet as high a standard of capacity to make a will as a person does in order to make a contract. They must have the mental capability at the time of making the will to know the natural objects of their bounty, understand the nature and extent of their property, understand that they are making a will, and have the ability to dispose of their property by means of a plan they have formulated. Even if they do not have the mental capacity to carry on a business or if they make usual provisions in the will, this does not necessarily mean that they do not have the capacity to make a will. An insane person lacks sufficient capacity; however, an insane person who has intervals of sanity has capacity during sane intervals to make a will. Any person, other than a minor, of sound mind ordinarily has the competence to make a will. In a few states minors can, under limited circumstances, make a will. 

Limitations on Disposition of Property

The law places few restrictions on the right to dispose of property by will. However, some restrictions include:

1. A spouse may elect to take that share of property that would have been received had the deceased died without leaving a will, or the share provided by statute, if the spouse's will does not leave as large a share, called the right to take against the will. Most state laws now provide that when an individual dies without leaving a will, a spouse has the right to a set portion of all the property the deceased spouse owned at the time of death. The spouse's portion varies depending on the number of children or other heirs who survive. The surviving spouse in some states may also claim an interest in property conveyed by the deceased spouse during the marriage without consent of the surviving spouse. The right to take against the will can be barred by actions of the surviving spouse. If the surviving spouse commits acts that would have justified the deceased in securing a divorce, the surviving spouse generally cannot elect to take against the will. Except for the cases of a surviving spouse collecting to take against the will and in some cases of a subsequent marriage, birth, or adoption, the testator may exclude or disinherit any person from receiving any portion of the estate. If the testator gives the entire estate to someone else, all persons who would inherit in the absence of a will are excluded. The testator does not even have to mention in a will those persons disinherited except for disinherited children who must be mentioned to prove the testator did not forget them. A nominal sum does not have to be left to those disinherited.
2. One cannot control by will the distribution of property in perpetuity (for all time). The common law rule against perpetuities requires that an interest in property must vest, if at all, within 21 years after the death of persons living on the date the owner of the property creates the interest. When the interest is created by will, the date of death of the owner constitutes the date of creation.

Terms Common to Wills

A number of terms may refer to individuals named or gifts given in a will. The one receiving a gift of real estate (the beneficiary) is called the devisee; the beneficiary of personal property is a legatee. A device is real property given by will. A bequest, or a legacy, is a gift by will of personal property. The person named in a will as the one to administer the estate is an executor or personal representative. One who dies without having made a will is said to die intestate. A person appointed by a court to settle the affairs of an intestate is an administrator (man) or an administratrix (woman).

Distinguishing Characteristics of a Will

A will has the following outstanding characteristics that distinguish it from many other legal instruments:

1. The courts construe a will with less technical strictness than a deed or any other kind of written document.
2. A will devising real property must be executed in conformity with the law of the state in which the property is situated. The law of the state in which the testator was domiciled (had permanent residence) at the time of death governs a will bequeathing personal property.
3. A will may be revoked at any time during the life of the testator.

Formalities

All states prescribe formalities for wills. These formalities must be strictly followed. A will almost always must be in writing and signed by the testator.

A will written in the testator's own handwriting and dated need not be witnessed in a number of states. In almost all states the will must be witnessed by at least two, and in some states three, disinterested witnesses regardless of how it is written. Usually, the witnesses and the testator must sign in the presence of each other. Many states also require the testator to inform the witnesses that the instrument being signed is the testator's will. This is called a publication. 

When the law requires subscribing witnesses, they must be available at the time of probate of the will to identify their signatures and the signature of the testator and to state but they were present when the testator signed the will. If the witnesses cannot be found, two persons must normally identify the signature upon their experience through prior correspondence or business records involving the testator's signature. A will executed in another jurisdiction is valid if correctly executed in the other jurisdiction. If a person's will is not drawn according to the legal requirements, the court may disregard it and the testator's estate may be disposed of in a manner entirely foreign to the testator's wishes.

Special Types of Wills

Under special circumstances, testators can make valid wills that are less formal than usual. Three special types of wills include:

1. Holographic wills
2. Nuncupative wills
3. Soldiers' and Sailors' Wills

Holographic Wills

Holographic wills are written entirely in longhand by the testator. Some states make no distinction between holographic and other Wills. In other states variations of the general law of Wills exist for holographic Wills. In still other states holographic Wills may not be recognized. 

Nuncupative Wills

Nuncupative wills are oral wills declared by the testator in the presence of witnesses. Usually such a will can only be made during the testator's last illness. A nuncupative will only applies to personal property, and sometimes only a limited value of personal property may be so disposed. The witnesses frequently must reduce the will to writing within a specified number of days and they must agree as to how the deceased disposed of the property.

Soldiers & Sailors Wills

Most states make special provision for members of the armed forces. They are allowed to make oral or written wills of personal property without complying with the formalities required of other wills. These wills are enforced even after the testator returns to civilian life. They must be revoked in the same manner as other wills. 

*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., PGS. 542-546*

end