will (in law)

The Columbia Encyclopedia, 6th ed.

will (in law)

will, in law, document expressing the wishes of a person (known as a testator) concerning the disposition of her property after her death. If a person dies intestate, i.e., without a valid will, statutes determine how her property is divided up among her relatives; if no relatives can be found, the property escheats (i.e., goes to the government). Wills are made to vary the statutory scheme (e.g., to give a crippled child more money than a healthy child). The will may provide for outright grants or for the establishment of trusts. No particular form of words is necessary in a will, only a clear expression of intent. Statutes usually protect the surviving spouse and children, prescribing for them a set proportion of the estate whatever the provisions of the will. Wills ordinarily must be in writing, but in certain strictly defined circumstances (e.g., in the case of soldiers or sailors in combat) the law may recognize an oral will as reported by a witness. Written wills must be subscribed (i.e., signed below the complete text) by the testator and must bear the signatures of two (or, in some jurisdictions, three) people who witnessed the testator's signature. A person has capacity to make a will only when he is of sound mind and is not unduly influenced by an interested party. Persons below a certain age (usually ranging from 18 to 21) are deemed not to have the capacity. All objections to a will must be made at the probate, which precedes the distribution (administration) of the property. Real and personal property were once passed on by two different systems, but today only remnants of the division remain (e.g., in separate sets of terms). In England the Statute of Wills (1540) lifted many restrictions on the use of wills and permitted the testator to dispose of real property by will. See heir.

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