Will

Will in United Kingdom

Definition of Main Clauses In A Will

These are the main clauses that a legal practitioner would expect to find in a will.

Definition of Proving The Will

This is a term used in wills and probate matters.

Definition of Taking Instructions On Making A Will

The solicitor’s responsibility is to take proper instructions from the client and carry them out.

Definition of Will

A person’s express intentions for disposing of their estate when they die.

Concept of Will

The following is an old definition of Will [1], a term which has several meanings:1. The faculty of the mind which makes choice between objects or ends; the power which directs action; inclination toward action; desire, purpose, consent, intention, volition. As employed in defining the crime of rape, is not construed as implying the faculty by which intelligent choice is made between objects, but as the synonym of “inclination” or “desire;” and in this sense is used with propriety in reference to the actions of persons of unsound mind. The technical phrase ” against the will ” charges violence, especially in the commission of such crimes as rape, and robbery from the person. ” Against consent ” expresses the idea with equal accuracy. In the case of robbery, the greatest degree of terror is not contemplated. See Violence. On the subject of ill-will, see Malice; as to estates at will, see Tenant, At will. Willful; willfully. In common par- lance “willful” means intentional, as distinguished from accidental or involuntary; in penal statutes it means with evil intent, with legal malice, without ground for believing the act to be lawful. The ordinary meaning of “willful,” in statutes, is not merely ” voluntary,” but with a bad purpose. ^ Sometimes it means little more than ” intentional” or “designed.” But that is not its ordinary signification in criminal and penal statutes; in them it most frequently conveys the idea of legal malice in greater or less degree – implies an evil intent without justifiable excuse. “Voluntary”is, therefore, a weaker word: it means simply “willing.” Doing or omitting to do a thing ” knowingly and willfully ” implies not only a knowledge of the thing, but a determination with a bad purpose to do it or to omit doing it. ” Willful,” frequently means more than merely ” intentional;” it sometimes implies perverseness, deliberate design, malice. ” Willfully,” in an indictment, implies that the act is done knowingly and of stubborn purpose, but not necessarily of malice. Referring to an act forbidden by law, means that the act must be done knowingly and intentionally – that with knowledge the will consented to, designed and directed the act. Only want or defect of will will pi’otect the doer of a forbidden act from the punishment annexed thereto. An involuntary act induces no guilt: the concurrence of the will, when it has its choice to do or to avoid an act, being the only thing that renders human action either praiseworthy or culpable. To make a crime complete there must be both a will and an act. As no temporal tribunal can search the heart or fathom the intentions of the mind, otherwise than as demonstrated by outward actions, it cannot punish what it cannot know. Hence, an overt act, some open evidence of an intended crime, is necessary to demonstrate depravity of will, before a man can be punished. . To constitute a crime against human laws, there must be a vicious will and an unlawful act consequent thereon. The will does not join with the act in three cases; (1) When there is a defect of understanding. Where there is no discernment there is no choice, and where no choice there is no act of the will, which is merely a determination of one’s choice to do or to abstain from doing a particular action. (2) Where there is understanding and will sufficient, but it is not called forth or exerted at the time the action is done; as, in cases of chance and ignorance. (3) When the action is constrained by outward force. Here the will disagrees as to the act which the person is obliged to perform. To the first class of cases are referred infancy, lunacy, and intoxication: to the second class, misfortune and ignorance; to the third class, compulsion or necessity, qqv. See Consent; Crime; Duress; Insanity; Intention; Knovtledge; Malice; Mind; Volo; Voluntary, 1. See also Good- will

Alternative Meaning

The legal declaration of a man’s inten- tion which he ” wills ” to be performed after his death. A disposition of real and personal property to take effect after the death of the testator. It expresses ” the will ” of the maker as to the direction his property shall take. A declaration of the mind, either by word or writing, in disposing of an estate; to take place after the death of the testator. An instrument in any form, if the obvious purpose is not to take place till after the death of the maker, operates as a will. The essence of the definition is, it is a disposition to take effect after death. The form is immaterial, if the substance is testamentary. An instrument by which a person makes a disposition of his property to take effect after his decease. A will is to be considered as the ” testament,” and the instrument. The testament is the result and effect in law of what is the will; that consists of all the parts, including a codicil. See further Testament. Whatever the form of the instrument, it it vests no present interest but only appoints what is to be done after the death of the maker, it is “testamentary.” If the intention is to convey a present estate, though the possession be postponed until after the death of the maker, the instrument is a ” deed; ” if an interest accruing after his death, it is a ” will.” If the disposition necessarily takes effect after the death of the maker, and that intention is clear, the instrument is a will, though the maker supposed it to be some other kind of a paper. If the Instrument is such that, upon delivery, interests vest, though to be enjoyed in possession in the future, or obligations are created which are enforce- able by the parties respectively, it is a contract inter vivos. An instrument in the form of a deed, signed, sealed, and delivered as such, but intended as a posthumous disposition of a maker’s property, is testamentary. Last will. The last will made. If two or more wills are in contemplation, this expression appropriately designates the one made after the other or others; otherwise, “last” is redundant, the word ” will ” alone fully expressing the idea. Niineupative will. Such will as depends upon merely oral evidence, being declared by the testator in extremis, before a sufficient number of witnesses, and after- ward reduced to writing. In early times, a will of chattels was good without writing – that being then little known. By the time of Henry Vm (1509), reading and writing had become so widely diffused that verbal or unwritten wills were confined to extreme cases. A case of perjury in con- nection with one will, as well as the opportunities for imposition they have ever afforded, caused nuncupative testaments to be placed under restrictions by the Statute of Frauds and Perjuries of 29 Chas. II (1678), c. 3. By 1 Vict. (1837), o. 26, §§ 9, 11,- preceded by 1 Will, IV (1830), c. 20 – the privilege was confined to soldiers ” in Actual military service ” and to mariners and seamen “at sea,” and extended to personalty only. These statutes, which, in substance, have been re-enacted here, receive a strict construction. The deceased must, furthermore, possess testamentary capacity, be in contemplation of death, without time to make a written will, and clearly evince, bywords or signs, an intention to dispose of his property. In England, while property continued in a man only for his life, wills were unknown. In more modern times, a person could dispose, of but one-third of his movables from his wife and children. No will of lands was permitted till 1541, and then of a portidh only. Indeed, wills and successions are creations of municipal law exclusively. Statute of wills. Statute of 32 Henry VIII (1541), c, 1, which enabled a person seised in fee-simple, socage tenure, to devise lands according to his own pleasure, except to a body corporate, and enabled a person holding lands in chivalry to devise two-thirds thereof. Later statutes, notably that of 7 Will. IV and 1 Vict. (1837), v;. 26, removed all restrictions. Our ancestors imported the English law on the subject of wills. Statutory regulafions, which are substantially alike in all the States, follow the English statutes, especially the Statute of Wills, so called. In New York, for example, every person must de- vise within the limitation of the Statute of Henry VIII, which became part of her law upon the adoption of the constitution of 1777, and, with modifications, re- mains so to this day. Power to dispose of property by will rests almost wholly upon statutes, the directions of which must be substantially complied with. No right is now more solemnly assured than the power to dispose of property by will as the owner pleases. This privilege creates an incentive to practice industry and frugality. The law secures equality of distribution when the owner dies intestate. The object of a will is to produce inequality either in the disposition or use. to make preferments; and, in this matter, a sane man, not unlawfully influenced, has a right to be governed by his prejudices. If a testator does not violate any principle of public policy, religion, or morahty, nor infringe upon any statute, he may make such disposition of his property as he sees proper. A will ” speaks from the death ” of the maker; that is, takes effect, as respects its dispositions, from the moment of his decease. The testator must be of years of discretion, now generally twenty-one, and of testamentary capacity. The draughting, signing, attesting, publishing, revoking, probating, etc., are matters also largely regulated by statutes, and explanatory decisions. An important general principle is that personalty is to be disposed of according to the law of the domicil of the testator, while realty must be disposed of according to the law in vogue at the place where the property is situated. A court of equity has power to correct mistakes in a will apparent upon the face of the instrument or made out by a due construction of its terms: the intention is the will. The intent of the testator is the cardinal rule by which to construe a will. If that intent can be clearly perceived, and is not contrary to a positive rale of law, it must prevail, although, in giving effect to it, some words should be rejected, or so restrained, as materially to change the literal meaning of the particular sentence. Wills being the least artificial of all instruments, often the productions of persons ignorant of the law and of the correct use of the language in which they, are written, are the least to be governed by the settled use of technical legal terms. It may well be doubted if any other source of enlightenment is of much assistance than the application of natural reason to the language of the instrument under the light thrown upon the intent of the testator by the extrinsic circumstances surrounding the execution, and connecting the parties and the bequests and devises with the testator and with the instrument itself. When interpreting a will, the attending circurastances of the testator, such as the conditions of his family, the amount and character of his property, are to be considered. The interpreter is to place himself in the position occupied by the testator when he made his will, and from that standpoint discover what was intended. tiittle aid is to be derived from a resort to formal rules, or from a consideration of judicial determinations in cases apparently similar. It is a question in each case of the reasonable interpretation of the words of the particular will, with a view to ascertaining the testator’s intention. See further Administer, 4; After; Ambiguity; Attest; Bequest; Cancel; Codicil; Contest; Conversion; Cy Pres; Demonstratio; Descent; Description, 2; Desire; Devise; Donatio; Effects;Election, 2; Equally; Executor; First, 2; Heir; Holograph; Ignorance; Influence; Inherit; Inofficious; Insanity, 2 (5); Issue, 5; Item; Legacy; Lost, 2; Money; Mortmain; Mutilate, 2; Part, 1, Reasonable; Perpetuity, 2; Power, 2; Precatory; Presence; Probate; Property; Provided; Publication; Punctuation; Reading; Representative (1); Res, 2; Residue; Said; Script; Scrivener; Separate, 2; Sign; So; Sole: Subscriber, 2; Then; Trust; Umpire; When; Writing.

Resources

Notes and References

  1. Meaning of Will provided by the Anderson Dictionary of Law (1889)

Posted

in

,

by

Comments

Leave a Reply

Your email address will not be published. Required fields are marked *