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What is a Last Will & Testament?

In the ancient world

The development of Roman law furthered the modern understanding of Wills. and led to the development of the law of estates in many European states, greatly aided later by Religious scholars versed in Roman law.

In Christian tradition, Eusebius and others have related of Noah's testament, made in writing, and witnessed under his seal, by which he disposed of the whole world. Additionally, Wills are spoken of in the Old Testament (in Genesis 48), where Jacob bequeaths to his son Joseph, a portion of his inheritance, double to that of his brethren.

The Ancient Greek practice concerning Wills was varied; some states permitted men to dispose of their estates, others wholly deprived them of that privilege. The lawmaker Solon is much commended for his law concerning Wills; for before his time no man was allowed to make any, but all the wealth of deceased persons belonged to their families; but he permitted them to bestow it on whom they pleased, esteeming friendship a stronger tie than kindred, and affection than necessity, and thus put every man's estate in the disposal of the possessor; yet he allowed not all sorts of Wills, but required the following conditions in all persons that made them:

  1. That they must be citizens of Athens, not slaves, or foreigners, for then their estates were confiscated for the public use.
  2. That they must be men who have arrived to twenty years of age.
  3. That they must not be adopted; for when adopted persons died without issue, the estates they received by adoption returned to the relations of the men who adopted them.
  4. That they should have no male children of their own, for then their estate belonged to these. If they had only daughters, the persons to whom the inheritance was bequeathed were obliged to marry them. Yet men were allowed to appoint heirs to succeed their children, in case these happened to die under twenty years of age.
  5. That they should be in their right minds, because testaments extorted through the frenzy of a disease, or dotage of old age, were not in reality the Wills of the persons that made them.
  6. That they should not be under imprisonment.
  7. That they should not be induced to it by the charms and insinuations of a wife; for (says Plutarch) the wise lawgiver with good reason thought that no difference was to be put between deceit and necessity, flattery and compulsion, since both are equally powerful to persuade a man from reason.

Wills were usually signed before several witnesses, who put seals to them for confirmation, then placed them in the hands of trustees, who were obliged to see them performed. At Athens, some of the magistrates were very often present at the making of Wills.

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; the testator declaring his Will in the presence of seven witnesses; and it could not be changed -; but the danger of trusting the Will of the dead to the memory of the living soon abolished these; and all testaments were ordered to be in writing.

It is certain that the earliest forms of Will were those made in or on the eve of battle.

In the time of the Emperor Justinian the main points essential to a Wills 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 to be free from legal disability. For instance, women and slaves were not good witnesses(!)

The whole property of the testator could not be transferred to another. The rights of heirs and descendants were protected by enactments which secured to them a legal minimum. 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 formalities for making a Will.

The liability of the heir to the debts of the testator varied. At first it was practically unlimited. The law was then gradually modified in favour of the heir, until in the time of Emperor 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.

The effect of Christianity upon the Will was very marked. For instance, the duty of bequeathing to the Church was formally impressed upon the public 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. For the validity of a Will it was generally necessary that it should be made in the presence of a priest and two witnesses. Gifts to the Church were not subject to the deductions in favour of the heir and the children which was necessary in ordinary cases. In England, the Church succeeded in holding in its own hands for centuries jurisdiction in testamentary matters.

The Roman law of Wills has had considerable effect upon English law. At the same time there are some broad and striking differences which should be borne in mind. The following among others (as of 1911) 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 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 be 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.
  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 formalities of execution.
  6. The Roman testatum 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 as the English can, pass after-acquired property.

Development of the Law of Wills in England

Liberty of alienation[ability to transfer all legal title] by Will is found at an early period in England. How far the liberty extended is uncertain; it is the opinion of some authorities 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.

Land

It became the law after the Conquest, according to Sir Edward Coke, that an estate greater than for a term of years could be disposed of by Will, unless in Kent, where historical customs prevailed, and in some manors and boroughs (especially the City of London), where the pre-Conquest law was preserved by special indulgence. However the devise(gifting by Will) of land was not acknowledged by law, no doubt, partly to discourage deathbed gifts. 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 1 May 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 (which came to be known as the Statute of Wills), and a further explanatory act in 1542-1543.

The effect of these acts was to make lands held in fee simple (the more straightforward individual ownership) devisable by Will in writing. Corporations were incapacitated to receive, and married women, infants, idiots and lunatics to devise. An act of 1660, by abolishing tenure by knight service(an ownership granted 'rent free' in return for military service), made all lands devisable, in the same vein. 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 required, 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 vivos(during lifetime) of land devised by the Will made subsequently to the date of the 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 from 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.

Personal property

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 of England a man could only dispose of his whole personal 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. 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 the 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 until 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 bona 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. 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 executor 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.

Legislation

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 in force in the early twentieth century were 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 the acts of 1837 and 1852 deal mainly with what happens to the Will after death, whether under the voluntary or contentious jurisdiction of the Probate Division.

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.
  • Gifts to a witness or the husband or wife of a witness are void.
  • A Will is revoked 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.

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 testators who used them probably did not dream of. Many of the judicial doctrines which had gradually become established were altered by the Wills Act.

Rules of interpretation founded on principles of equity independent of statute are very numerous. 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 be 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.

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.

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 domicile.
  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 domicile. The immovable (including leaseholds) to the law of the place where it is situated, 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 domicile at the time of his death, the form of the instrument in most countries either by the law of his domicile or the law of the place where the Will was made, at his option. 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 domicile at the time of making it, or by the law of the place of his domicile of origin. Subsequent change of domicile does not avoid such a Will.

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