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.