Wills

Wills are legal declarations that are made by individuals (referred to as the testators). These legal declarations name at least one person to manage her or his estate and provides instructions for the distribution of her or his property upon death. Wills pertain to both real and personal property. Wills can be made with or without the assistance of a lawyer. Anyone can create a will, provided he or she is over the age of majority and he or she is of sound mind. After the testator dies, the will goes into probate.

Brief Historical Background

Wills can be dated back to Ancient Greece. During this time, the practice of wills was not uniform and people disposed of property as they saw fit. There were some loose rules set in place such as: if there are male children the estate automatically when to them, the individuals should be in their right minds, they should not be imprisoned nor should they be forced into making a will. Some of these rules are still in place today.

Decades ago, there was a distinction between will and testament. Historically, a will was mostly limited to real property. A testament on the other hand typically applied to disposing of personal property. That is where the popular name, Last Will and Testament, came from. More recently however, the term will has been widely applied to both real and personal property. It is also possible that a will will create a testamentary trust which only becomes effective following the death of the testator.

In history the longest legal will that is known is from a woman in England. Her will was 1066 pages and was bound in four volumes. The shortest of legal wills contain only a few letters (HEIR’S) and other short wills may only contain a few words.

Precedent Setting Cases

There is a widely known and used case regarding wills. Haynes versus National State Bank of New Jersey that took place in 1981 in New Jersey.

In this case, the testator received a rather large estate following the death of her husband. Her two daughters had children of their own and her one daughter came to live with her until her own death. The testator then went to live with her younger daughter. The testator had a will drawn up (using her daughter’s family attorney) that left most of her estate to her one surviving daughter and only a small amount to her two grandsons. The grandsons sought that the will be set aside on the grounds of undue influence from the relationship between the testator and her daughter. After battling through the court system, decisions were made then reversed and finally the New Jersey Supreme Court ruled that the testator’s wishes stand.

Another well recognized case took place in 1988 – Pascale versus Pascale. In this case, the decision set a precedent as it ruled that if a person (donee) benefits from a gift that was given to him/her by a person he/she is in a confidential relationship with, then the donee must prove that the donor had independent counsel to make the gift.

Defenses

Wills do not have defenses associated with them however, there are ways to legally revoke a will. One way you can revoke a will is to intentionally physically destroy the will. This can be done by the testator by tearing or burning the document or even just striking out the signature. In some States, it is permissible to cross our a particular part of the will as long as the act is carried out and witnessed. A new will is able to revoke an old will, provided that it states that this will supersedes any previous wills. Dependent relative revocation states that if a testator mistakenly thinks that a previous will can be put back into effect by revoking a later will, the court may decide to ignore the will that was revoked and will revive the earlier will, as long as it similar to what the testator intended.