Will

Will is, in English law, a disposition of property, made to take effect at the owner's death, and revocable at any time during his life. Though, by the Wills Act of 1837, a writing is indispensable to a will, yet there is an exception in the case of soldiers or sailors, who, from their occupation, and while in actual service, are allowed to make a verbal or nuncupative will; this exception, however, extends only to their personal estate, for they must make a written will, like other persons, in order to deal with their real estate. An infant, or person under twenty-one years of age, cannot, since 1838, make a will. A married woman can make a will only if she has separate property, or her husband assents to her will, or she makes the will by virtue of some power of appointment vested in her. As a general rule, it is absolutely necessary that the party making a will should have a free and disposing mind at the time; and hence if he or she is a lunatic, or drunk, or acting under compulsion, fear, or undue influence, the will is invalid. There is no limit as to the time preceding death when a will may be made: it is enough that the testator was at the time capable and sensible, though he died immediately after. A will must be executed in presence of two witnesses, who see the testator sign the will, or at least hear him acknowledge it. But there is no particular form of words in which a will must be made for the purpose of disposing either of realty or personality. The will must be in writing, but it need not be in ink or written continuously. The testator may sign by his mark or by an assumed name. Though a seal is not equivalent to signature, yet a person may have a stamp to sign papers with, and that will be sufficient for a will also. The testator need not sign the will if he authorise some one to do so for him in his presence. The signature must be at the foot or end of the will; but if it is placed so as to lead a court to the conclusion that it was intended to give effect to the will, that will be enough. Though the witnesses need not know it is a will, they must be present together when the testator signs it or acknowledges his signature. The witnesses must sign their names or make their marks. A legatee, or the wife or husband of a legatee, may be an attesting witness, but by being so will forfeit any legacy left by the will. But one may be an executor though he attests the will. A will is revoked by the marriage of the testator or testatrix. The mere fact of making a subsequent will does not of itself operate to revoke a prior will, unless there is some inconsistency in whole or in part; and, as a general rule, no will will be revoked by any presumption of an intention on the ground of an alteration in circumstances. The usual way of revoking a will is to burn, tear, or destroy it with the intention of revoking the same; or to execute another will which expressly revokes the prior will. When a testator tears or cuts away that portion of his will containing the signature and attestations, the presumption is that he intends to revoke the whole. But merely cutting out a part of the will, or striking it through with a pen, does not amount to a revocation. It is to be borne in mind that, in order to revoke by tearing, &c., there must be an intention to revoke, so that a mere accidental tearing will not amount to revocation. When there are interlineations or alterations in a will, it is presumed these are made after signature, unless there is evidence to prove the contrary. A will which is in any manner revoked can only be revived by re-execution, or by a codicil showing an intention to revive it; but many nice questions have arisen as to what causes a will to revive.—In Scotland a will is used only to denote a testament affecting personal or movable property; while a will affecting real or heritable property can only be made by way of a deed having a present operation. A will or testament may be written in the handwriting of the testator, and if signed by him will not require witnesses, being then called a holograph will. In other respects wills are subject to nearly the same rules which prevail in England with respect to revocation &c. Wills of real property are called Dispositions or Deeds, and have a present operation, and the mode in which they are drawn up is that of conveying the property to the donee, but reserving the testator's liferent. The effect of this is that the testator retains the property in his own hands while he lives; but the moment he dies, the disposition mortis causa comes into play, and the donee then takes the property, subject to the deed (see DEED). In the United States the general principles of the law relating to wills are for the most part of English origin, but the laws of the states vary widely as to the forms required in making a will, &c. In ancient times wills were sometimes enrolled for preservation among the records of a superior or local court, but the episcopal registry in each diocese was the usual place of deposit until by the act which established the Court of Probate in 1857 a principal registry was created at Somerset House, and forty district registries throughout the country. When a will is deposited in a district registry a copy is sent to Somerset House. To the principal registry were transferred the wills deposited in the Prerogative Court of Canterbury since 1883, and those of several other jurisdictions. Any will of a deceased person at Somerset House may be consulted on payment of a fee of one shilling, but readers are not allowed to copy the provisions of a will; official copies may be obtained at a small expense. The will of a living person may be deposited for safe keeping (not, of course, for consultation), but very few testators take advantage of this arrangement. See CODICIL, DEED, EXECUTOR, FORGERY, LEGACY, PROBATE; treatises on wills and will-making by Jarman, Tudor, Theobald, Flood, Davidson; for Scotland, McLaren; and for the United States, Redfield or Schouler, and Stimson's American Statute Law.