Wills

12 Key excerpts on "Wills"

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  eBook - PDF

  Law

  Made Simple

  • D. L. A. Barker, C. F. Padfield(Authors)
  • 2014(Publication Date)
  • Made Simple

    (Publisher)

  The Court of Probate Act, 1857, transferred the jurisdiction relating to Wills to the ordinary civil courts, where it has been exercised ever since. However, many of the rules applied today are derived from the early Church courts which applied canon law (i.e. Church law), not the common law. Nature of a Will. A will is a declaration of a person's intentions con-cerning the descent of his property after his death. A will is said to be ambulatory (i.e. not permanent: subject to revocation or alteration) until the death of the testator. The will speaks from death. If A makes 297 298 Law Made Simple a disposition of'All my property to Z the successor (Z) will receive all the property which A owns at the moment of death. The gift will include property which A acquires between the time of making the will and his death. It will not, however, include property which A has disposed of between these times. Testamentary Capacity. The general rule is that any person of full age and sound mind may make a valid will. The testator is presumed sane at the time when he made his will; but if the will is contested on the ground that the testator was of unsound mind when he made it, the person propounding the will has the burden of proving that the testator was of sound mind. Married women were formerly incapable of making valid Wills, but legislation in the past century has remedied this, so that now they have full testamentary capacity (Married Women's Property Acts, 1882-93, and the Law Reform (Married Women and Tortfeasors) Act, 1935). An infant cannot make a valid will, but there is an exception in regard to infant soldiers, sailors, and airmen (see p. 299). Formalities. The Wills Act, 1837, is the main Act governing this important matter. Its main provisions are: (a) Writing. A will must be in the form of a written document. Any document, e.g. a letter, can suffice and may include other documents existing at the time the will was made and referred to in the will.

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  Succession, Wills and Probate

  • Caroline Sawyer, Miriam Spero(Authors)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  Chapter 3 Nature and Characteristics of a Will

  The testator’s will, in the sense of the means of making their testamentary dispositions, is the document or documents in which they have expressed what they wish and intend to become of their property at their death. It should embody their will in the sense of their volition. If the testator has not had a will, in the sense of a volition, to make testamentary gifts of their property, then even if they make and execute a document which states on the face of it that it is the testator’s will and which complies with all the formalities laid down by statute, the lack of intention to make a will means that the document does not operate as such.

  The will, to be valid, must comply with all the necessary formalities: for most people, those mean a written document. It must be intended to take effect at the testator’s death, disposing of their property or making other appointments. If it complies with all the requirements of formality and makes testamentary dispositions, it will be the testator’s will even if it does not describe itself as such and the testator would not have said in terms that they were making a will. As elsewhere in the law, where an arrangement may be a lease if it fulfils the conditions for a lease and even if it does not describe itself as such, it is the substance, not the label, that is important.

  3.1 Meaning of ‘will’

  Anything which is propounded (brought into the probate process) as the testator’s will must have all the necessary characteristics of a will and also comply with the formalities. If both these general conditions are satisfied, then the will is valid; whether or not it describes itself specifically as a ‘will’ is not important.

  A will that has been proved is a public document. This may seem less odd following the opening of the Land Register in 1990, but nevertheless, given the much more personal matters involved, could be considered to raise issues of privacy.1

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  J.K. Lasser's New Rules for Estate and Tax Planning

  • Stewart H. Welch, III, Harold I. Apolinsky, Craig M. Stephens(Authors)
  • 2009(Publication Date)
  • Wiley

    (Publisher)

  CHAPTER 7 Where There’s a Will, There’s Your Way! In the last chapter, you learned about the many potential pitfalls of dying without a will or of relying on property titles to transfer your property for you. A logical solution is a properly drafted Last Will and Testament (referred to hereafter as a “will”). In this chapter, we will discuss the basic structure of a will along with advice on making key decisions concerning guardians, trustees, executors, and trusts. What Is a Will? A will is a legal declaration giving instructions as to what person(s) or organization (s) is to receive your property after your death. This declaration names the executor or personal representative who will be responsible for settling your estate, the trustee(s) responsible for managing any trusts you have created, and the guardian(s) who will care for your minor children. Types of Wills The concept of Wills dates back to British law in the mid 1500s. Before that time, when a commoner died, part of his property automatically reverted to royalty. The Parliament passed a law establishing the Statute of Wills, which allowed these commoners to leave all of their property to whomever they chose under certain rules and guidelines. Today, there are many types of Wills. While it may be helpful for you to know that many varieties exist, you should definitely avoid some of them. Oral, or Nuncupative, Will Although most states require that Wills be in writing, a few states do allow oral Wills. Oral Wills are usually associated with deathbed situations when the testator (the person dying), in front of witnesses, states his or her final wishes. Typically at least three witnesses are required to be present during the testator’s statement and the testator must die within a certain period of time

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  Principles of Estate Planning, 3rd Edition

  • Carolynn Tomin, Colleen Carcone(Authors)
  • 2018(Publication Date)
  • The National Underwriter Company

    (Publisher)

  A will is a legal instrument by which a person leaves certain instructions for others after his death. A will is generally used to dispose of a decedent’s real and personal property in accordance with state laws. However, a will can also address other important matters, such as naming an executor or a guardian for minor children, and determining how debts and taxes should be paid at death.

  Although only an attorney can draft a will, the financial planner and all other members of a client’s planning team must understand the provisions included in it and ensure that it is coordinated with the client’s other property interests. Planners must ascertain the manner in which a client’s property will pass to others and understand how certain provisions, such as tax provisions, can affect the overall estate plan. Financial planners need to review their clients’ Wills periodically as their circumstances change to identify and resolve any particular problems associated with the will and to ensure that their clients’ wishes will be realized at their death.

  AN INTRODUCTION TO Wills

  The person who executes or makes the will is known as the testator . When an individual dies with a will, he is said to die testate , and any property that he owns at the time of his death will pass to others as directed by the terms of his will. When an individual dies without a will, he dies intestate and property will pass according to his state’s laws of intestate succession, or intestacy.

  A will does not become operative until a decedent’s death, and it is revocable during his lifetime. This means that the testator can change any of the provisions of the will or rewrite it as often as he likes while alive. If a testator wishes to change only a portion of his will, he can execute a codicil instead. A codicil is a legal document that is executed to address minor changes in a will.

  DISPOSITION OF PROPERTY UNDER A WILL

  When a testator leaves property under a will, he is making a bequest to a legatee . Property can be bequeathed in several ways. It is fairly common for a testator to dispose of tangible (personal) property separately from other intangible property

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  International Aspects of Succession

  • Gareth Miller(Author)
  • 2017(Publication Date)
  • Taylor & Francis

    (Publisher)

  6 Wills

  1 Introduction

  (a) What is a will?

  In general terms a will may be described as a declaration of a person’s wishes as to the disposition of his or her property and in relation to certain other matters to take effect upon or after his or her death. In common law countries a will is now regarded as having three essential characteristics. First, it takes effect only on the death of the person making it (the ‘testator’) and no interest passes to any beneficiary named in a will until the death of the testator. Secondly, a will is revocable by the person making it, and this is so even though it is expressed to be irrevocable. Thirdly, a will is ambulatory, that is, it is effective to pass property acquired after it is made as well as property acquired before it was made.

  It may be necessary for a court to consider whether a document which has the characteristics of a will was intended to be provable as such in the probate court. This was the case in In re Berger deceased 1 where the deceased had made a will in English but it had not been properly executed. He had also made a will (or zavah) in Hebrew which he had clearly intended should be obeyed, and enforced, if necessary, by the Rabbinical Tribunal. The Court of Appeal held that the Hebrew will, being duly executed, could be admitted to probate in the English court. Mustill L.J. believed that the deceased would have been startled to learn that the zavah was to be administered by the English court rather than by the tribunal to whose religious and cultural norms it so plainly appealed. Nevertheless, the court was satisfied that the deceased had intended to make a revocable disposition which was to operate on death. This was sufficient, and it was not necessary that the will should be in any particular form or that the testator should have addressed his mind to the question whether the instrument would be capable of admission to probate in the English court. However, Mustill L.J. went on to say that in his view the court would not grant probate of a document which had the characteristics of a will if the person executing the document had made it clear that he did not wish it to be a provable will.2

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  Wills, Trusts, and Estate Administration

  • Janis Walter, Emma Wright, Janis Walter, Emma Fletcher(Authors)
  • 2021(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  To be properly executed, a will must conform to the laws of the state in which it is made. Each state enacts (passes) laws on the execution of Wills, and these laws are not always the same. Laws differ on the method of writing that may be used (e.g., whether the will may be handwritten or holographic, typewritten, computer generated and printed, audiotaped, or videotaped) and on the placement of the testator’s signature (e.g., whether it must be on every page, only at the end of the will, or simply anywhere on the will). Individuals who are unfamiliar with the laws of their state and try to create their own Wills often make mistakes or omissions concerning their property, naming their beneficiaries, or attempting to satisfy the statutory requirements for a will. The result may be an unintended, incomplete, or invalid will. To become a well-trained and experienced paralegal, you need to learn and master the laws of your state so you can explain the statutory requirements, terminology, and procedures associated with Wills and help clients execute a valid and meaningful will that accurately fulfills their intent and desires. However, always be careful not to provide legal advice! Basic Terminology Related to Wills Before proceeding further, it will be helpful to present some basic terminol- ogy related to Wills and estates. Exhibit 1.1 explains the terms used to indicate whether a person died with or without a valid will. The following terms relate to the actual making of a will. • Execute. To perform or complete, i.e., to write and sign a will. • Attest. To bear witness; to affirm or verify as genuine (e.g., the witness who attests the testator’s intent, capacity, and signature on a will). • Subscribe. To sign one’s name generally at the end of a will. • Witnesses. Two or more persons who attest and subscribe (sign) the will.

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  Financial Planning, Essentials Edition

  • Warren McKeown, Marc Olynyk, Mike Kerry, Lisa Ciancio, Diem La(Authors)
  • 2020(Publication Date)
  • Wiley

    (Publisher)

  It provides directions about who the willmaker wants to distribute their assets to, how much each beneficiary is to receive and nominates the person responsible for finalising the affairs of the deceased in accordance with the directions of the will. Although there are many reasons why having a valid will is important, it is not required by law. Drawing up a valid will A will is a legal document that must be made in accordance with the relevant legislation applicable to where the will is made. In Australia, making a will falls under state jurisdiction and each state has its own legislation dealing with Wills. Although there are many similarities between the states, there are some differences. This chapter deals with making a will in general terms and does not examine the differences in state legislation. The person making the will is known as the willmaker or testator. Wills must be in writing and signed by the willmaker in the presence of witnesses. Generally, there needs to be at least two witnesses who are independent of the willmaker and must not be beneficiaries. The number of witnesses required and who is allowed to witness Wills differs between states. Although it is not a requirement, it is preferable that the willmaker and witnesses use the same pen when signing. Otherwise, the validity of the will may be open to challenge on the basis that the witnesses and willmaker were not present at the same time. It is important that the willmaker sets out all his or her wishes in the body of the will. Any details written in another place and not referred to in the main body of the will, or any instructions appearing after the signatures, may not form part of the will. Some people make a separate list of belongings and nominate the person they want to leave them to. Although this list may be useful, unless it is referred to in the will it may not be legally enforceable if a dispute over any of the nominated items arose among the beneficiaries.

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  Estate Planning For Dummies

  • Jordan S. Simon, Joseph Mashinski(Authors)
  • 2023(Publication Date)
  • For Dummies

    (Publisher)

  The first time you sit down with your attorney, make sure to talk about the value of your estate, the individuals (family members and others) and institutions you want to leave your estate to, and continuity of care concerns such as long-term care at home or facility care such as independent living, assisted living, and nursing home concerns. Your attorney will then clearly understand your motivation and can help you prepare a will that accurately reflects your situation and preferences. Getting to Know the Different Types of Wills Before you even think about what wording you should put in your will, you first need to decide which of several types of Wills is right for you. The good news is that you can usually stop your search for the perfect type of will with the first type we discuss: the simple will. However, you should be familiar with the other types in case your attorney advises that some unique aspect of your estate makes one of these other types more appropriate. Simple Wills Almost always, a simple will is the will of choice for you. A simple will is a single legal document that applies only to you (unlike a joint will for you and your spouse, which we discuss briefly in the next section). A simple will describes » Who you are, with enough information to clearly identify that document as your will. » The names of your beneficiaries, both people (whether those people are family members or not) and institutions (such as charities), and enough CHAPTER 3 Understanding the Basics of Wills 51 information about the beneficiaries (such as their birth dates to distinguish among multiple family members with the same name, for example) so whoever is reading your will can figure out to whom you’re referring. » The name of the person who you’re appointing to be the executor of your will. The executor is the person who is legally responsible for making sure that your directions are carried out.

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  Estate Planning Basics

  • Denis Clifford(Author)
  • 2024(Publication Date)
  • NOLO

    (Publisher)

  89 Property That Your Will Can’t Transfer ...................................................... 91 Preparing Your Will ................................................................................................... 92 Challenges to Your Will ........................................................................................... 93 78 | ESTATE PLANNING BASICS A will is what many people think of when they first consider estate planning. This makes sense. Everyone should have a will, whether or not they engage in more extensive planning. And many people decide that a will is all the planning they need, at least for the time being. A will is simply a legal document, usually only a few pieces of paper, in which you name the people who will receive your property after you die (more accurately, all property left by the will). Normally, you name: • direct beneficiaries, to receive specific property left to them • alternate beneficiaries, to receive property left to any direct beneficiaries who die before you do, and • one or more residuary beneficiaries (and alternates), to receive all property not left to other beneficiaries under your will. A will can also serve other vital purposes, such as appointing a personal guardian to raise your young children. (See “Naming Someone to Care for Young Children” in Chapter 3.) Wills do have a few technical requirements, but not as many as you might fear; you can readily master the technicalities. You can name whomever you want as beneficiaries of your will property. And if your situation calls for it, you can use your will to establish a child’s trust, family pot trust, or custodianship under the UTMA. (See “Choosing How Your Children’s Property Should Be Managed” in Chapter 3.) Will Requirements Although most people know what a will is, at least in a general sort of way—something to do with property after a death—many people don’t really understand what a will does, how it works, or what it requires.

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  Every Californian's Guide To Estate Planning

  Wills, Trust & Everything Else

  • Liza W. Hanks(Author)
  • 2024(Publication Date)
  • NOLO

    (Publisher)

  A Will Is Just One Part of Your Estate Plan You’ve decided to make a will. But is it all you need? The truth is that even though a will is the key legal document in your estate plan, it is only part of it. You probably own significant assets—perhaps the most valuable things you own—that aren’t governed by your will at all. You need to take them into account, too. You’ll also need to create a durable power of attorney and an advance health care directive so that your loved ones can manage financial affairs and take care of your health if you are incapacitated. (See Chapter 11 for advice on preparing those documents.) Houses, retirement accounts, proceeds from life insurance policies, and even some brokerage and bank accounts aren’t usually subject to what your will says. If that surprises you, you’re not alone. Many people have no idea that their Wills don’t control what happens to some of their most important assets. In Chapter 1, I listed the assets that don’t go through probate— remember the Two Kinds of Assets diagram with the Probate/ Not Probate line down the middle? Assets that don’t go through probate include assets with beneficiary designations, such as retirement assets, life insurance proceeds, and assets that you own with others with a right of survivorship, like joint tenancy and community property with right of survivorship. Assets held in a living trust also avoid probate, but for a different reason (see Chapter 3). Guess what? These are the very same assets that are not subject to your will. And this makes sense: Probate governs only assets that pass by will or intestacy (intestacy laws dictate who inherits when there is no will). 44 | EVERY CALIFORNIAN’S GUIDE TO ESTATE PLANNING When you open up a retirement account, purchase a life insurance policy, or own a house with a right of survivorship, you name a beneficiary or a joint owner.

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  Nolo's Encyclopedia of Everyday Law

  Answers to Your Most Frequently Asked Legal Questions

  • The Editors of Nolo(Author)
  • 2023(Publication Date)
  • NOLO

    (Publisher)

  When they are, it’s usually by a close relative who feels somehow cheated out of a rightful share of the deceased person’s property. Generally speaking, only spouses are legally entitled to a share of your property. Your children aren’t entitled to anything unless you unintentionally overlooked them in your will. (See “Can I disinherit relatives I don’t like?” above.) To get an entire will thrown out as invalid, someone must go to court and prove that it suffers from a fatal flaw: The signature was forged, you weren’t of sound mind when you made the will, or you were unduly influenced by someone. RESOURCE For more about Wills, see these Nolo products: • Quicken WillMaker & Trust (online and downloadable software). Lets you create a valid will, living trust, and many other important estate planning documents. • Quick & Legal Will Book, by Denis Clifford. Book containing forms and instructions for creating a basic will. Probate There is only one way you can beat a lawyer in a death case. That is to die with nothing. Then you can’t get a lawyer within ten miles of your house. —Will Rogers When a person dies, someone must step in to wind up the deceased person’s affairs. Bills must be paid, property must be accounted for, and items must be passed on to the people chosen by the deceased person. If state law requires that all this be handled through court proceedings, the process can take many months. CHAPTER 11 | Wills AND ESTATE PLANNING | 267 What is probate? “Probate” is a legal process that includes: • if there’s a will, proving in court that it is valid (usually a routine matter) • if there is no will, determining who inherits under state law • identifying and inventorying the deceased person’s property • having the property appraised • paying debts and taxes, and • distributing the remaining property as the will or state law directs.

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  Drafting of Wills

  • (Author)
  • 2013(Publication Date)
  • Siber Ink Publishers

    (Publisher)

  It is intended as a guide for the draftsperson as to the kind and extent of information that is required to be able to advise the client properly and competently and to be able to draft his/her will. 2.3 FORMALITIES FOR A VALID WILL 2.3.1 Wills Act 1 Section 1 — Definitions • amendment = deletion, addition, alteration or interlineation • competent witness = person of 14 years and older and competent to give evidence in court • Court = High Court 1 7 of 1953 (as amended by the Law of Succession Act 43 of 1992). FORMALITIES 41 • deletion = deletion, cancellation or obliteration, excluding that which contemplates revocation of the entire will • sign = includes initials and in the case of a testator only includes the making of a mark • will = includes codicil and any other testamentary writing. Section 2 — Formalities (Peremptory, not discretionary) Section 2(1)(a) The will must be: • Signed at the end by the testator or some other person in his presence and by his direction • Signed in the presence of two or more competent witnesses present at the same time • Attested to and signed by witnesses in the presence of the testator or other person, and in the presence of each other Other requirements: • If the will is more than 1 page, then the testator or other person must sign each page — anywhere. • The testator must sign/initial/make a mark on every page and at the end. • The two witnesses must sign/initial at the end. A testator can sign by making a mark or he can ask somebody to sign on his behalf (in his presence and at his direction), but a Commissioner of Oaths must be present, must complete a Certificate, and must sign each page. The Certificate must be prepared as soon as possible after the testator has signed, even if the testator has died in the interim. Refer to cases under section 2.4 below. The form of the Certificate in terms of section 2(1) (a) (v) is reproduced at the end of the Act in Schedule 1 (see page 200 below).

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