Cyclopedia of Commerce, Accountancy, Business Administration, v. 03 (of 10)

by American School of Correspondence

WILLS

348. Will Defined. A will has been defined to be a "disposition of real property to take effect after the death of the testator." Originally, the term will applied only to dispositions of real property, and the term testament applied to dispositions of personal property. At present, the terms will and testament are not uncommonly used. But the original limitation of the term, will, is no longer commonly recognized. The term, will, is now used to describe a disposition of personal as well as real property to take effect at the maker's death.

349. Names of Parties and Terms Commonly Used in a Will. The person who makes a will is called the testator or devisor. The term testator is more commonly used than the term devisor to designate the maker of a will. The term devise is used to designate the giving of real property. If A desires to give a farm to B by will, the language used in the will is, "I, A, devise to B my farm." Technically, the term devise means the giving by will of real estate, but it is commonly used to designate the giving by will of personal property as well. The term bequeath is used to designate the giving of personal property by will. If A desires to give by will a watch to B, he uses the language, "I, A bequeath to B my watch." The beneficiary, or person designated in the will to receive real property, is called the legatee.

350. Origin and Nature of Wills. At common law, a person was permitted to give by will a portion of his personal property. He was not permitted to give real property by will. In England, the right to give real property by will was given by statute. The law of this country has always recognized the right to give real as well as personal property by will. It is not regarded as a right but rather as a privilege extended to an owner of property. This privilege is controlled by the legislatures of the states.

The states differ in their statutory requirements as to the manner of making wills, and the amount of property that may be willed to the exclusion of the wife and family. A will must be signed, acknowledged, and witnessed as required by statute, and may be rendered void if the statutory requirements are changed between the time the will is made and the death of the testator. A will is not a contract. The right to make contracts cannot be abridged by legislation. This right is a constitutional right. The constitution gives an owner of property no right to make a will. It is a privilege which may be abridged or taken away by the legislature. Most of the states give a wife a dower interest in the real estate of her husband. (See Dower Estate, chapter on Real Property.) A husband cannot will away his estate, depriving his wife of dower.

351. Law Governing Wills When Testator Owns Property in One State and Resides in Another at Time of Death. Real property is fixed and immovable. No matter where a testator resides at the time of his death, the law of the state where the real property is located governs the will relative to its disposition. If the will does not comply with the law of the state where the real property is located, the general rule is that the will cannot be enforced, even though the will is valid under the law of the state where the testator resides at the time of his death. For example, if A owns real property in Cleveland, Ohio, but resides in Omaha, Nebraska, A may make a valid will under the law of Nebraska which may not comply with the Ohio law. If A dies, the provisions of the will cannot be enforced as to the real property in Cleveland. Personal property, on the other hand, is movable and is supposed to follow the residence of its owner. If a will is valid where the testator resides at the time of his death it is valid to pass personal property, regardless of where the personal property is located. Some states at present provide by statute that if a will is valid where the testator resided at the time of his death, it is valid to pass real property, no matter where located.

352. Essentials of a Will. Primarily, a will is an instrument in which a person expresses his intention to give his property to certain designated persons, to take effect upon his death. Any instrument, no matter whether it be termed a will, containing an expression of intention to have property pass to another at the death of the maker, satisfies the requirement.

To constitute a will, there must be no present interest in the property passing absolutely to the beneficiaries named in the instrument at the time the written instrument is made. A person may make a gift, a bill of sale, or a deed of property if he chooses. The title to the property passes to the purchaser or donee at once or at some future stipulated time. Such transactions are not wills. A will does not take effect until the death of the testator. It may be revoked, changed, or supplanted at the will of the testator. Any instrument that conveys a present interest is not a will. The two most essential things in determining whether an instrument constitutes a will are, first, the power to revoke the instrument, or a stipulation or language used showing that the instrument is not to take effect until the testator's death; and second, the expression of an intention of the testator to make a will. Certain formal requisites as to signature and witnessing are required by statute in different states. These requirements are discussed under separate sections.

353. Who May Make a Will. By statute in most states, anyone of legal age, of sound and disposing mind and memory may make a will. At common law, when a woman married, her property became her husband's. A married woman could not make a will. At present, by statute, most states provide that married women may contract concerning their separate estates. They are also permitted to make wills. A person must be of legal age to make a will. What constitutes legal age is fixed by statute in the different states. All provide that twenty-one years is the legal age for males. Some fix the legal age for females at eighteen, others at twenty-one.

What constitutes sound and disposing mind and memory is a matter of some dispute. It is conceded that idiots, imbeciles, and insane persons, while insane, cannot make wills. The mental capacity required of a person to enable him to make a will is usually stated to be that mental capacity which enables a person to describe his property, to name the natural objects of his bounty, and to understand the nature of a will. A person does not have to be in good health to make a will. He does not have to be mentally sound within the ordinary meaning of the term. He may be very ill, and weak both in mind and body. He may be eccentric, may have been insane, may be subject to illusions, or even may be under guardianship for insanity and still be able to make a will. If he is able without assistance from others to describe his property, to understand in general the nature and effect of making a will, and to name the persons who are the natural objects of his bounty, he is capable of making a will. If his mind is not sufficient to perform all of these functions he is not capable of making a will. To constitute an instrument a valid will, it is not necessary that the instrument show in itself that the testator had all these powers. He may not name all, or any of the natural objects of his bounty in the will. He may not describe all of his property. If he was capable of doing these things at the time he made the will, regardless of whether or not he exercised this capacity, the will is valid.

If a testator makes a will under such mental pressure or threat of violence that he does not act according to his wishes, the will may be avoided by reason of undue influence or duress. Undue influence may be exerted by anyone, but not necessarily by a beneficiary under the will. All solicitations or remarks or supplications to the testator to make a particular provision in a will do not constitute undue influence. The influence must be of a sort to compel the testator to act against his wishes, and to destroy his ability to act through his own mental agency.

354. What May be Disposed of by Will. Any property owned by the testator, whether real or personal, may be disposed of by will. Property cannot be freed from liens or incumbrances by will. If A owns a farm, but B has a mortgage on it, A can dispose of his interest by will, B retaining his interest in the mortgage as against the devisee. A husband cannot cut off his wife's dower estate by will. A person may dispose of all his real and personal property by will. A will covering all the real and personal property of the testator will pass the real and personal property acquired by the testator after he made the will.

355. Requisites of a Will as to Form. Ordinarily, a will must be in writing. In some jurisdictions, and under certain circumstances, oral wills are recognized as sufficient to pass certain property. These oral wills are called nuncupative wills. They are discussed under a separate section. A will may be written on any kind of material, and in any language. It may be printed, written on a typewriter, written in the testator's own handwriting or by another. It may be written on one or several pieces of paper. The pieces need not be fastened together if their contents show their connection. Another instrument not set forth in the will may be incorporated into the will by reference, if the instrument can readily be identified, and was in existence at the time the will was made. A will must be signed.

The statutes of most states require that a will be signed by the testator, or by some one authorized to sign for him. A person not able to write may sign by mark. A person usually signs by mark as follows:John ^his X _mark. Any mark made by the testator is sufficient. Most states require by statute that wills must be signed in the presence of two or three witnesses. These witnesses must be competent to understand the nature of the transaction. They need not necessarily be of legal age. They must affix their signatures as witnesses to the will. A beneficiary under the will should not be a witness. The witnesses of a will are required to observe the competency of the testator and his signature, in order that they may testify to these facts when the will is proven. The statutes of most states make it sufficient for the testator to acknowledge his signature in the presence of the witnesses. In this event, they need not see him sign his name to the will. The witnesses are usually required to sign the will in the presence of the testator, and in the presence of each other.

356. Publication of a Will. Some states provide by statute that to constitute a written instrument a valid will, the testator must acknowledge it to be a will at the time it is signed and witnessed. This act is known as publication. Some states do not have such a statutory provision. In the absence of statutory provisions, publication is not necessary. It is not necessary that the testator read or cause the will to be read to the witnesses to comply with the statutory requirements of publication. The witnesses must know that they are witnessing a will. Any word, expression or act on the part of the testator which notifies the witnesses that they are witnessing a will is a sufficient publication.

A requested B and C to visit his house in the evening and witness his will. They went to A's house, where A presented a document to them, which he signed in their presence, and which they signed as witnesses. A did not acknowledge that the instrument was a will. The court held this to be a sufficient publication. B and C had been informed that the instrument was A's will.

357. Contract to Make a Will. A person may enter into a contract to make a will which will bind his estate. The party with whom such a contract is made cannot force the other party to make a will, or prevent him from revoking a will if made, but he can bring an action for damages against such party's estate if the latter dies without leaving a will according to his agreement. A will can be revoked at the desire of the testator. Revocability is one of the essential features of a will. A party may bind himself by contract to make a will in favor of a certain person. This contract does not prevent such person from revoking the will if made, but it renders the person's estate liable for breach of contract. A, a boy of twenty-one years of age, was told by his father, B, that if he would continue to work for him until he was thirty-five years of age, he would will him a certain farm, A agreed to this proposition, and worked for his father until he was thirty-five years of age. B subsequently died, leaving a will by which the farm was given to another son. A was permitted to recover the value of the farm by suit.

These contracts require clear and convincing evidence to support recovery. A agreed to board, clothe, care for, and bury B, his father, in consideration of B's agreement to give A all his property. A fulfilled the terms of his contract. B died leaving a will by which his property was given to C. A was permitted to recover the value of the property by suit.

358. Holographic Wills. A holographic will is one written entirely in the handwriting of the testator. Such wills are sometimes called olographic wills. A minority of the states of this country recognize the validity of holographic wills. These wills need not be witnessed to be valid. An ordinary will may be printed, typewritten, or written by a person other than the testator. The testator must sign and publish the will, that is, he must acknowledge the instrument to be a will, in the presence of the attesting witnesses. In case of a holographic will, there need be no witnesses, acknowledgment, or publication, but the will must be entirely in the handwriting of the testator, and must be signed and dated by the testator himself.

In some jurisdictions, it is necessary that a holographic will be found among the testator's valuable papers, to constitute a valid will. A died and the following document was found among his valuable papers:

$100,000.00

Four years after my death, I hereby authorize my executors to pay Francis Penn one hundred thousand dollars.

Signed A.

This was held to be a valid holographic will. A holographic will is frequently in the form of a letter addressed to the beneficiary.

359. Nuncupative Wills. Many of the states of this country recognize the validity of oral wills made under certain circumstances for the purpose of disposing of personal property. Such wills are called nuncupative wills. Soldiers and sailors while in actual service may dispose of their personal property by this form of will.

Persons other than soldiers and sailors may make nuncupative wills when in their last sickness or in danger of impending death. The will is made by calling upon disinterested persons to bear witness to the will which the testator describes orally. These words, in substance at least, must be reduced to writing, usually within ten days from the death of the testator, by one of the witnesses, and signed by the witnesses. Nuncupative wills are not favored in law. They are not sufficient to dispose of real property. Some states do not recognize the validity of these wills unless they are made at the testator's dwelling. An exception to this rule is where the testator, surprised by sickness when upon a journey, dies while away from home. Nuncupative wills must be proven within six months after they are reduced to writing. A was suddenly taken seriously ill at his home. He called upon B and C, disinterested witnesses, to bear witness to his will, and directed that his personal property be given to his wife D. A died, B reduced the words of A to writing within ten days after A's death, and C and B signed as witnesses. The will was proven within six months. It was held to be a valid nuncupative will.

360. Revocation and Alteration of Wills. A will may be revoked at any time before the testator's death. The testator may himself revoke his will, or he may cause someone to perform some act under his direction and in his presence, which will revoke the will. The statutes of most states provide that a person may revoke a will by tearing, cancelling, obliterating, or destroying the will with the intention of revoking it. Any of these acts performed by a stranger, not in the presence nor under the direction of the testator, are void acts, and do not destroy the validity of the will. If the testator himself, tears, cancels, destroys, or obliterates the will with the intention of revoking the will, the instrument no longer has any validity or force as a will. A will is cancelled by drawing lines with a pen or pencil across the written portion of the will. A will may be revoked by a later will which expressly revokes the former, or which disposes of all the property of the testator. A later will which does not expressly revoke a former will, and which does not dispose of all the testator's property does not revoke the former will, but both are construed together. A codicil is an instrument altering, revoking, changing, or adding to certain portions of a will. It must, itself, be signed, witnessed and acknowledged the same as a will, and is construed as part of the will.

361. Lost Wills. A will which is lost or destroyed with no intention to revoke may be proven as a will after the testator's death. If a will is partially or totally destroyed by accident, or by someone who is to profit by the total or partial destruction, the will is said to be spoliated, and its contents, as it existed before spoliation, may be proven after the testator's death. It must be remembered that a will may be revoked by a testator at any time. If a testator makes a will, and has it in his possession, and after his death the will cannot be found, the presumption is that he revoked the will. This presumption may be rebutted, however. If the testator tells of having a will shortly before his death, or if the will is seen, or any evidence is produced that the will was not revoked by the testator, it may be proven as a lost will. If a will is made and left for safe-keeping with a third person, inability to find it after the testator's death raises no presumption that is was revoked by the testator. To prove a lost will as a will, witnesses must be produced who know in substance the contents of the will, that it was made and that it was not revoked by the testator. If a will is partially destroyed by someone who is to benefit thereby, or by accident, the contents of the portion so destroyed may be proven as a lost will.

362. Abatement, Advancement, and Ademption. If a person does not have sufficient property at his death to pay the bequests and devises made in his will after payment of his debts, his devises and bequests are paid pro rata out of the estate remaining after the payment of debts and expenses, unless the testator expressed a wish or intention that certain bequests or devises were to be satisfied in preference to others. In this event, the wishes of the testator must be observed. The rule requiring all devisees and legatees to receive but a portion of the property mentioned in the will, in case there is not sufficient property to satisfy all, is called abatement.

If a person makes a will bequeathing a certain article of personal property, or a certain amount of money to another, and if, before the will becomes operative by the death of the devisor, the latter delivers the article or pays the money to the legatee, or sells or disposes of the particular article mentioned in the bequest, the will is said to be adeemed, and the act by which it is adeemed is called ademption. In case of ademption of a particular article, the bequest is satisfied. In case a certain sum of money is bequeathed to a person by will, and the amount of money is given the legatee by the devisor, whether it satisfies the bequest, or whether it is a gift in addition to the bequest mentioned in the will, is a matter of intention on the part of the devisor. If the devisor expressly says it is a gift in addition to the bequest mentioned in the will, it will not satisfy the bequest mentioned in the will. If nothing is said which expressly shows the wish or intent of the devisor, the presumption is, that it is to apply on the bequest, or if sufficient in amount, that it satisfies the bequest. The intent of the testator may be determined by the circumstances connected with the payment. If a sum of money is paid by a testator during his lifetime to a legatee mentioned in his will, to apply on the bequest, the payment is sometimes called an advancement.

363. Form of Will.

I, John Brown, of the City of Chicago, County of Cook, and State of Illinois, being about 61 years of age, and of sound and disposing mind and memory, do make and publish this my last will and testament.

First, I desire that all my debts and the expenses connected with my funeral be paid.

Second, I give, devise and bequeath to my wife, Jane Brown, the sum of $10,000.00, all the household furniture and chattel property of every kind and nature used in and in connection with our residence, and a life estate in my two farms.

Third, I give and devise to my two sons, John Brown, Jr., and Clark Brown, jointly, my farm known as the "Home Place." This devise is subject to the life estate of my wife mentioned in division two of my will.

Fourth, I give and devise to my daughter, Anna Brown, my farm known as the "North Place," during her life, and at her death to her lawful issue. This devise is subject to the life estate of my wife, provided for in division two of this will.

Fifth, the balance of my personal property I give and bequeath to Smith Home for Aged Men, of Chicago.

I appoint my son, John Brown, Jr., executor of this will, and revoke all former wills. In witness whereof, I have subscribed my name this 10th day of September, 1909.

John Brown.

The foregoing instrument was signed by the said John Brown in our presence, and by him published, and declared to be his last will and testament, and at his request, and in our presence and in the presence of each other, we subscribed our names as attesting witnesses at Chicago, Illinois, this 10th day of September, 1909.

Thomas Jones, Residing at 21 State St.,
James Johnson, Residing at 4704 Drexel Ave.,

Chicago, Ill.