Will or Testament

Form of Wills.

From very early times a will of personalty was valid if it was declared by word of mouth of the testator before witnesses (this was called a nuncupative will) or, though unwitnessed, if it was all written by the testator in his own hand (this was called a holograph will). Uses of land could be devised in the same way. So far as land was concerned, when the Statute of Wills made the legal fee-simple devisable it enacted that the will devising it must be signed by the testator in the presence of three credible witnesses and the courts held that a witness was not credible if he or his wife took any benefit under the will. Later it was enacted that such a witness was credible but the gift was bad. The Statute of Frauds also introduced certain conditions as to the forms of wills of beneficial interests in land and nun cupatory wills of personalty. Finally the Wills Act 1837 decreed that every will of property, whether such property was realty or personalty and whether it was legal or equitable, must be made in the same way, i.e., it must be in writing signed by the testator in the presence of two witnesses, both being present at the same time, who in the presence of the testator are to sign the will as witnesses. Usually the witnesses also sign in the presence of each other but this is not strictly necessary and is only done for greater safety. (See further PROBATE.) The acts of 1925 and 1926 have affected the law of wills to a very small extent. The most important alteration made by them has been the turning of executors into universal successors. For centuries executors as such had nothing to do with their testator's fees simple. When these were expressly left to them for the pay ment of the deceased's debts they took not as executors but as devisees ; and when fees simple were made liable for the deceased's debts even when not so devised, on the death of the testator, they devolved on the devisee, and to make them liable for debts an action for administration was necessary. That was altered by the Land Transfer Act 1897 which vested in his executors the de ceased's legal and equitable estates in freehold, and his equitable fees simple in copyholds. That act, however, did not affect the devolution of fees tail and legal fees simple in copyhold. Now by the Administration of Estates Act 1925 all a testator's estate, whether realty or personalty and whether disposed of by his will or not, including property over which he has by his will exercised a general power of appointment and fees tail which he has dis posed of by his will, vests in his executors for the purposes of administration. Accordingly executors may now be taken to oc cupy the position held by the haeres in later Roman law. The whole property, realty and personalty, forms a common fund for the payment of the testator's debts. If the estate is inadequate to pay the decea.•;ed's debts in full, then the creditors are to be paid according to the rules prevailing in bankruptcy, whether the estate is administered by the court or by the executors. This pro vision is accompanied by another which seems inconsistent, namely that the executors have still the right to retain their own debts and prefer the debts of other creditors over debts of equal stand ing. When the estate is solvent but insufficient to pay all debts and legacies in full, the following is the order in which the assets are liable to be appointed for the payment of debts : Property undisposed of by the will, (2) property left by a residuary gift, (3) property left expressly for the payment of debts, (4) prop erty charged with the payment of debts, (5) property liable to pay pecuniary legacies, (6) property specifically devised or be queathed, and (7) property appointed under a general power of ap pointment or estates in fee tail disposed of by the will.

It may just be noted that neither the Land Transfer Act of 1897 nor the Administration of Estates Act of 1925 applies to Ireland. (J. A. ST.) Scotland.—Up to 1868 wills of immovables were not allowed in Scotland. The usual means of obtaining disposition of heritage after death was a trust disposition and settlement by deed de praesenti, under which the truster disponed the property to trus tees according to the trusts of the settlement, reserving a life interest. Thus something very similar to a testamentary disposi

tion was secured by means resembling those employed in England before the Wills Act of Henry VIII. The main disadvantage of the trust disposition was that it was liable to be overthrown by the heir, who could reduce ex capite lecti all voluntary deeds made to his prejudice within 6o days of the death of his ancestor. In 1868 the Titles to Land Consolidation Act made it competent to any owner of lands to settle the succession to the same in the event of death by testamentary or mortis cause deeds or writings. In 1871 reduction ex capite lecti was abolished. A will of im movables must be executed with the formalities of a deed and registered to give title. The disability of a woman as a witness was removed by the Titles to Land Consolidation Act. As to wills of movables, there are several important points in which they differ from corresponding wills in England, the influence of Roman law being more marked. Males may make a will at 14, females at 12. A nuncupative legacy is good to the amount of 00 Scots (i8 6s. 8d.), and a holograph testament is good without wit nesses, but it must be signed by the testator, differing in this from the old English holograph. By the Conveyancing Act such a will is presumed to have been executed on the date which it bears. Not all movables can be left, as in England. The movable property of the deceased is subject to jus relictae and legitim. See McLaren, Wills and Succession, for the law, and Judicial Styles for styles. • France.—The law is mainly contained in ss. 967-1074 of the Code Civil. Wills in France may be of three kinds: (I) holo graph, which• must be wholly written, dated and signed by the testator; (2) made as a public instrument, i.e., received by two notaries before two witnesses or by one notary before four wit nesses; this form of will must be dictated by the testator and written by the notary, must be read over to the testator in the presenc'e of the witnesses and must be signed by testator and witnesses; (3) mystic, which are signed by the testator, then closed and sealed and delivered by him to a notary before six witnesses ; the notary then draws up an account of the proceed ings on the instrument which is signed by the testator, notary and witnesses. Legatees and their blood relations to the fourth de gree may not be witnesses. Nuncupative wills are not recognized. Soldiers' and sailors' wills are subject to special rules as in most other countries. Full liberty of disposition only exists where the testator has no ascendants or descendants, in other cases his quantite disponible is subject to reserve; if the testator has one child he may only dispose of half his estate, if two only one third, if three or more only one-fourth; if he has no descendants but ascendants in both lines he may dispose of half, if ascendants in one line only he may dispose of three-fourths. The full age of testamentary capacity is 21 years, but minors over the age of 16 may dispose by will of half of the estate of which they could dispose had they been of full age. There is no restriction against married women making wills. A contract to dispose of the suc cession is invalid, s. 791.

The codes of the Latin races in Europe are in general accord ance with the French law. (J. Wm.) United States.—The American colonists brought with them the English common law of wills as modified by the Statute of Wills. Inasmuch as the feudal system was never a part of Amer ican institutions many of the feudalistic limitations upon the devolution of real property by will never became part of Amer ican law. Statutes have quite generally modified the older law of wills and deal systematically with the whole subject of testa tion. In Louisiana the right of testation is governed by principles of the French law which have been adopted by the Louisiana code. In other Southern and Western States where the original settlers were of French or Spanish origin, marked traces of the civil law are to be found in their law of wills. By far the greater part of American law, however, is of English origin.