Will (law)

In the law, a will or testament is a documentary instrument by which a
person regulates the rights of others over his property or family after his
death. For the devolution of property not disposed of by will, see
inheritance and intestacy. In strictness will is a general term whilst
testament applies only to dispositions of personalty, but this distinction
is seldom observed.

The conception of freedom of disposition by will, familiar as it is in
modern England and the United States, both generally considered common law
systems, is by no means universal. In fact, complete freedom is the
exception rather than the rule. Legal systems which are based upon Roman
law, such as those of Scotland, France and Quebec, known as civil law
systems allow whole estates 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.

History

The will, if not purely Roman in origin, at least owes to Roman law its
complete development, a development which in most European countries was
greatly aided at a later period by ecclesiastics versed in Roman law. In
India, the will was unknown before English conquest; in law of Moes and in
ancient Athens the will, if it existed at all, was of a very rudimentary
character. The same is the case with the Leges barbarorum, where they are
unaffected by Roman law. The will is, on the other hand, recognized by
Rabbinical and Islamic law.

The early Roman will differed from the modern will in important respects. It
was effectual during the lifetime of the person who made it; it was made in
public, all knew of the legator's intentions; and it could not be changed.
The objective, as in adoption, was to secure the perpetuation of the family.
This was done by securing the due vesting of the breed in a person who could
be relied upon to keep up the family rites. There is much probability in the
conjecture that a will was only allowed to be made when the testator had no
known gentile relatives, uless they had waived their rights.

It is certain from the text of Gaius that the earliest forms of will were
those made in the comitia calata and those made in procinctu, or on the eve
of battle. The former were published before the comitia, as representative
of the patrician genies, and were originally a legislative act. These wills
were the peculiar privilege of patricians. At a later time the form of
plebeian will developed (irs/amentum per aes ci libram), and the law of
succession under testament was further modified by the influence of tile
practor, especially in the direction of recognition of fideicommissa similar
in some respects to testamentary trusts. Codicilli or informal wills, also
came into use, and were sufficient for almost every purpose but the
appointment of an heir.

In the time of Justinian a will founded partly on the jus civile, partly on
the edict of the praetor, partly on imperial constitutions and so called
testamentum tripertitum, was generally in use. The 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 court. The
witnesses must be idonci, or free from legal disability. For instance, women
and slaves were not 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 testamenhi being the remedy of those
passed over. The age at which testamentary capacity began was fourteen in
the case of males, twelve in the case of females. Up to 439 A.D. a will must
have been in Latin; after that date Greek was allowed.

Certain persons, especially soldiers, were privileged from observing the
ordinary forms. The liability of the heir to the debts of the testator
varied during different periods. At first it was practically unlimited. The
law was then gradually modified in favour of the heir, until in the time of
Justinian the heir who duly made an inventory of the property of the
deceased was liable only for the assets to which he had succeeded. This
limitation of liability is generally termed by the civilians beneficium
inventarii.

Something like the English probate is to be found in the rules for breaking
the 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 juris is
occupied with testamentary law. The whole of part v. of the Digest (books
xxviii.-xxxvi.) deals with the subject, and so do a large number of
constitutions in the Code and Novels.

The effect of Christianity upon the will was very marked. For instance, the
duty of bequeathing to the Church was inculcated as early as Constantine,
and heretics and monks were placed under a disability to make a will or take
gifts left by will. A will was often deposited in a church. The canon law
follows the Roman law with a still greater leaning to the advantage of the
Church. No Church property could be bequeathed. Manifest usurers were added
to the 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 priest and
two witnesses, unless where it was made in pias causes. The witnesses, as in
Roman law, must be done. Gifts to the Church were not subject to the
deductions in favour of the heir and the children necessary in ordinary
cases. In England, the Church succeeded in holding in its own hands for
centuries jurisdiction in testamentary matters.

This is practically in accordance with the definition of Modestinus in
Digest xxviu. I, 1, voluntatis nostrae justa sententia de eo quod quis post
mortem suam fieri velit. Ancient Law, chap. vi. dii. ioi.

The Roman law of wills has had considerable effect upon English law. In the
words of Sir H. Maine, "The English law of testamentary succession to
personalty has become a modified English form of the dispensation under
which the inheritances of law. Ronian citizens were administered." At the
same time there are some broad and striking differences which should be
borne in mind. The following among others may be noticed:

  1. A Roman testator could not, unless a soldier, 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 unirersitasfuris 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, 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 he disposed of in England; but it was not so at
     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 fourth in order to induce him to accept the inheritance.
  5. In English law all wills must conform to certain statutory
     requirements; the Romans recognized from the time of Augustus an
     informal will called codicilli. The English codicil has little in
     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
     fornialities of execution.
  6. The Roman tegatum applied to both movables and immovables; in England a
     legacy or bequest is a gift of personalty only, a gift of real 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.

Liberty of alienation by will is found at an early period in England. To
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 atithorities that complete disposition of 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
feudalism, to use a convenient if inaccurate term, arose between real and
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 Coke, that an
estate greater than for a term of years could be disposed of by will,
tinless in Kent, where the custom of gavelkind Real prevailed, and in some
manors and boroughs (especially property, the City of London), where the
pre-Conquest law was preserved by special indulgence. The reason why devise
of land was not acknowledged by law was, no doubt, partly to discourage
deathbed gifts in mortmain, a view supported by Glanvill, partly because the
testator could not give the devisee that seisin which was the principal
element in a feudal conveyance. By means of the doctrine to uses, however,
the devise of land was secured by a circuitous method, generally by
conveyance to feoffees to uses in the lifetime of he (cuff or to such uses
as he should appoint by his will. Up to comparatively recent times a will of
lands still bore traces of its origin in the conveyance to uses inter vivos.
On the passing of the statute of Uses lands again became non-devisable, with
a saving in the statute for the validity of wills made before May 1, 1536.
The inconvenience of this state of things soon began to be felt, and was
probably aggravated by the large amount of land thrown into the market after
the dissolution of the monasteries. As a remedy an act was passed in 1540,
and a further explanatory act in 1542-1543.

The effect of these acts was to make lands held in fee simple devisable by
will in writing, to the extent of two-thirds where the tenure was by knight
service, and the whole where it was in socage. Corporations were
incapacitated to receive, and married women, infants, idiots and lunatics to
devise. An act of 1660, by abolishing tedure by knight service, made all
lands devisable, In the same reign the Statute of Frauds (1677) dealt with
the formalities of execution. Up to this time simple notes, even in the
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 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 man was revoked by marriage
and the birth of a child, of a woman by marriage only. A will was also
revoked by an alteration in circumstances, and even by a void conveyance
inter aims of land devised by the will made subsequently to the tiate of
tile will, which was presumed to be an attempt by the grantor to give legal
effect to a change of intention. As in Roman law, a will spoke froni the
time of the making, so that it could not avail to pass after-acquired
property without republication, which was equivalent to making a new will,
Copyholds were not devisable before 1815, but were usually surrendered to
the,use of the will of the copyhold tenant; an act of 1815 made them
devisable simply. Devises of lands have gradually been made liable to the
claims of creditors by a series of statutes beginning with the year 1691.

The history of wills of personalty was considerably different, but to some
extent followed parallel lines. In both cases partial preceded complete
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-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 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 province of York, 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 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 evidence in a court of
law was a good witness to a will of personalty. A will entirely in tile
testator's handwriting, called a holograph will, was valid without
signature. At one time the executor was entitled to the residue in default
of a residuary legatee. But the Executors Act 1830 made him in such an event
trustee for the next of kin.

Jurisdiction over wills of personalty was till 1858 in the ecclesiastical
courts, probate being granted by the diocesan court if the goods of the
deceased lay in the same diocese, in the provincial court of Canterbury (the
prerogative court) or York (the chancery court) if the deceased had bone
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 Henry II, as it is mentioned by Glanvill. In the city of
London wills were enrolled in the Court of Hustings from 1258 to 1688 after
having been proved before the ordinary. Contested cases before 1858 were
tried in the provincial court with an appeal originally to the Court of
Delegates, later to the judicial committee of the privy council, There were
also a few special local jurisdictions, courts baron, the university coufts,
and others, probably for the most part survivals of the pre-Conquest period,
when wills seem to have been published in the 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 prohibition. No probate of a will of land was necessary,
and title to real estate by will might be made by production of the will as
a document of title. The liability of the execrator 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
contract in writing.

Nineteenth Century 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 Judicature Acts 1873 and 1875 and the Land Transfer Act 1897.
All but theacts of 2837 and 1852 deal mainly with what happens to the will
after death, whether under the voluntary or contentious jurisdiction of the
Probate Division. Some of the earlier acts are still law, though of little
importance since the more modern and comprehensive enactments.

The testamentary jurisdiction of the archdeacon's court is alluded to by
Chaucer in the "Friar's Tale," but it was afterwards completely superseded
by the bishop's court.

The earliest on the statute 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 report that at the time of its 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 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 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 sheet. Publication is not
necessary. A will is not void on account of the incompetency of a witness.
Gifts to a witness or the 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 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 condition through precedents extending back for
centuries, especially decisions of the court of chancery, the court 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 testaters who used them
probably did not 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 absence of a contrary intention. A residuary
devise is to include estates coitiprised 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 lapse if the devisce, though he predeceased the
testator. left issue inheritable under the 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 equity independent of
statute are very numerous, and for them the works devoted to the suoject
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 pole star to guide the judges. There
is a presumption against intestacy, against, double portions, against
constructing merely precatory words to import a trust, etc. 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 primary sense. Many words and
phrases, however, such as "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
ambiguity, and parol evidence of the terms of a lost will may be given as in
the famous case of Sugden v. Lord St Leonards (1876), 1 Prob. Div. 154.

A will may be void, in whole or in part, for many reasons, which may be
divided into two great classes, those arising from external circumstances
and those arising from the will itself. The main examples of the former
class are revocation by burning, tearing, etc., by a later will, or by
marriage of the testator (except as below), incapacity of the testator from
insanity, infancy or legal disability (such as being a convict), undue
influence and fraud, any one of which is ground for the court to refuse or
revoke probate of a will, A will being 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 judgment of Lord 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 species of restraint under
which no valid will can be made. There is nothing corresponding to the
querela inofficiosi testamenti, but unnatural provisions may be evidence of
mental defect. The circumstances appearing on the 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 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 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 earl, did not before
his death obtain the lapsed title of duke of Bridgewater.

There are some wills of an exceptional kind which demand special notice. The
King. It was resolved in parliament in Richard II's reign (1392) that the
king, his heirs and successors, might lawfully make their testaments.i in
some later cases parliamentary authority has been given to royal wills, in
others not. The executors of Henry IV were confirmed in their office by
letters patent of Henry V, those of Henry V by parliament. The largest
testamentary powers ever conferred on an English king were given to Henry
VIII by an act of 1533-1534, empowering him to limit and appoint the
succession to the crown by will, in default of children by Jane Seymour or
any future wife. By 39 & 40 Geo. III c. 88 the king and his successor may
devise or bequeath their private property. No court, however, has
jurisdiction to grant probate of the will of a king.

Guardianship

As a general rule wills deal with property, but even at common law a will
simply appointing a guardian was good. The common law was superseded by an
act of 1660, under which a father may dispose of the custody of his
unmarried infant children by will. The Guardianship of Infants Act 1886
extended such powers in certain cases to the mother.

Married Woman

At British common law a married woman could not (with a few exceptions) make
a will without her husband's licence and consent, and this disability was
specially preserved by the Wills Acts of Henry VIII and of 1837. A common
mode of avoiding this difficulty was for the husband to contract before
marriage to permit the wife to make an appointment disposing of personalty
to a certain value. Courts of equity from an early time allowed her, under
certain restrictions, to make a will of property held for her separate use.
In some cases her husband could dispose of her property by will, in others
not. The law as it existed previously to 1883 is now practically obsolete,
the Married Women's Property Act 1882 enabling a married woman to dispose by
will of any real or personal property as her separate property as a feme
sole without the intervention of any trustee. The act also enables a married
woman who is executrix of a will to act as if she were a feine sole. The
Married Women's Property Act 1893 extended the act of 1382 by making it
unnecessary for the will of a married woman to be reexecuted or republished
after the death of her husband.

Alien

Before 1870 an alien enemy resident in England could only dispose of
property by will with the king's licence. The Naturalization Act 2870
enables him to do so as fully as a natural-born British subject. But if he
be an alien domiciled abroad he cannet avail himself of Lord 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 petty officers and seamen in the navy, and of marines,
as far as relates to their pay or prize-money, mtist be attested by an
officer, and wills made by a seaman in the merchant service must, if made at
sea, be attested by the master or mate, if made on land by a superintendent
of a mercantile marine office, a minister of religion, justice of the peace,
or consular or customs officer. See the Merchant Shipping Act 2894, 5. 177.
The wills of prisoners of war are subject to special regulations, and the
Admiralty may at its discretion waive 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, wages, prize money and pensions due
to persons employed in the navy may be paid out without probate where the
whole assets do not exceed £32. The Board of Trade may at its discretion
dispense with probate of the will of a merchant seaman whose effects do not
exceed £50 in value. By an act passed in 1868 the existing exemptions are
extended to the sum of £100 in the case of civil service pay or annuities,
of civil or military allowances chargeable to the 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.

Registration

In the register counties memorials of wills affecting lands in those
counties must be registered. Member of friendly society, etc. Members of
friendly, industrial and provident societies, depositors in savings banks,
and servants in certain public offices, may under the pro visions of
numerous acts make a nomination to an amount not exceeding £100. Such
nomination is practically equivalent to a will, and may be made at the age
of sixteen.

At common law there could be no 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 servitude for life. Forgery of
a will (at one time a capital crime) renders the offender liable to the same
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 Amendment Act
1859, a misdemeanour punishable by fine or imprisonment or both. It should
be noticed that a. contract to make a will containing provisions 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.

The principal authorities for the English law are, for the formalities, Sir
EV Williams, Executors; Holdsworth and Vickers, Law of Succession; J
Williams, Wills and Succession; for the construction, the works of Sir James
Wigram and of Messrs Jarman, FV Hawkins and Theobald. Precedents will be
found in Hayes and Jarman's Concise forms of Wills, and in ordinary
collections of precedents in conveyancing. For comparative law see E
Lambert, Le Regime successoral (Paris, 1903).

The act of 1837 applied to Ireland. The main difference between the law of
the two countries is that in Ireland a bequest for masses land for the
repose of the testator's soul is valid, provided that re a" ' 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 trust disposition and
settlement by deed depraesenti, under which the truster disponed the
property to trustees according to the trusts of the settlement, reserving a
life interest. Thus something very similar to a testamentary disposition was
secured by means resembling those employed in England before the Wills 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 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 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 arc 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 legitim. See
McLaren, Wills and Succession, for the law, and Judicial Styles for styles.

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. Homesteads generally, and 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 take their share. It is frequently
provided that a certain amount must be left to the widow. Louisiana followed
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 dome
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 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 spiritualism does not of itself
constitute testamentary incapacity.

France

The law is mainly contained in ss. 967-1074 of the Code Napoleon. 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 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 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 quantile 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
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 civil codes of southern Continental Europe are in general accordance
with the French law.

Germany

Most of the law will be found in the Bürgsrliches Gesetzbuck, ss. 2064-2273.
A holograph will, either single or joint, is allowed. Other wills must be
declared before a judge or notary or (outside Germany) a 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 siege, a prevailing
epidemic, etc. Descendants, ascendants and the husband and wife, are
entitled to compulsory portions (pflicht-teilsberechligt). But those prima
facie entitled may be deprived of their share for certain specified kinds of
misconduct. A contract to make any specified testamentary disposition is
inoperative. But a contract of inheritance (Erbvertrag) made inter mvos by
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
tanto revoked.

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 Savigny and the German
     practice. Certain modifications have been made by modern law,
     especially by the Einführungsgesetz of 1896.
  2. The property may be subjected to the law of the place where it happens
     to be at the 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 option. The old rule of English law was to allow the
former alternative only. The law was altered for the United 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 day, the Domicile Act 1861, enacted that by convention with any
foreign government foreign domicil with regard to wills could not be
acquired by a testator without a year's residence and a written 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 language in consonance with that law, unless indeed he
express himself in technical language of another 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 Holland
was not revoked by her marriage, that being no ground of revocation by the
law of Holland.

The persons who are to take under a will are decided by different rules
according as the property is movable or immovable, the former being governed
by the law of the domicil, the latter by the Lex loci rei sitae. It was
held, however, in 1881 by the court of appeal in England that, under the
will of an Englishman domiciled in Holland, leaving personal property to
children, children legitimated per subsegitens matrimonium could take, as
they were legitimate by the law of Holland, though not by the law of England
(re Goodman's Trusts, 17 Ch. D. 266). This principle was carried further in
re Grey's Trusts (1892), 3 Ch. 88, where it was held that a legitimated
child was entitled to share in a devise of English realty. But it is to be
noted that a person born out of lawful wedlock, though legitimated, cannot
succeed as heir to real estate in England (Birtwhistle v. Vardill, 2 Cl. and
F. 895). 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.