WILL

will,n.1. Wish; desire; choice <employment at will>.2. A document by which a person directs his or her estate to be distributed upon death <there was no mention of his estranged brother in the will>. — Also termed testament; will and testament; (archaically) testamentary instrument. [Cases:

Wills  1–202. C.J.S. Conflict of Laws §§ 72, 89; Indians § 117; Wills §§ 1–51, 53–87, 93–95, 97–99, 103–104, 106–444, 796–797, 1621, 2026–2062.] — will,vb.

“The word ‘will’ has two distinct meanings. The first, and strict, meaning is metaphysical, and denotes the sum of what the testator wishes, or ‘wills,’ to happen on his death. The second, and more common, meaning is physical, and denotes the document or documents in which that intention is expressed.” Anthony R. Mellows, The Law of Succession 6 (3d ed. 1977).

ambulatory will.A will that can be altered during the testator’s lifetime. [Cases: Wills  78. C.J.S. Wills § 167.] antenuptial will.See prenuptial will. attested will.A will that has been signed by a witness.

bogus will.An unauthentic will, esp. one involving fraud or unauthorized changes. closed will.See mystic will.

conditional will.A will that depends on the occurrence of an uncertain event for the will to take effect. • Most jurisdictions hold a conditional will valid even though the testator’s death does not result from or on the occasion of the condition mentioned in the will. The courts generally hold that the condition is the inducement for making the will rather than a condition precedent to its operation. See Eaton v. Brown, 193 U.S. 411, 24 S.Ct. 487 (1904); In re Will of Cohen, 491 A.2d 1292 (N.J. Super. Ct. App. Div. 1985). Cf. contingent will. [Cases: Wills  80. C.J.S. Wills §§ 197–198.] conjoint will.See joint will.

contingent will.A will that takes effect only if a specified event occurs. Cf. conditional will.

[Cases: Wills  80. C.J.S. Wills §§ 197–198.] counter will.See mutual will. double will.See mutual will.

duplicate will.A will executed in duplicate originals by a testator who retains one copy and gives the second copy to another person. • The rules applicable to wills apply to both wills, and upon application for probate, both copies must be tendered into the registry of the probate court.

[Cases: Wills  175. C.J.S. Wills §§ 395, 412.]

holographic will (hol-<<schwa>>-graf-ik). A will that is handwritten by the testator. • Such a will is typically unattested. Holographic wills are rooted in the civil-law tradition, having originated in Roman law and having been authorized under the Napoleonic Code. French and Spanish settlers introduced holographic wills in America, primarily in the South and West. Today they are recognized in about half the states. — Also termed olographic will. See HOLOGRAPH.

[Cases: Wills  130–135. C.J.S. Wills §§ 317–327, 339, 341.] inofficious will.See inofficious testament under TESTAMENT.

international will.A will that is executed according to formalities provided in an international treaty or convention, and that will be valid although it may be written in a foreign language by a testator domiciled in another country. [Cases: Wills  238–246. C.J.S. Wills §§ 515–523.] invalid will.A will that fails to make an effective disposition of property.

joint and mutual will.A will executed by two or more people — to dispose of property they own separately, in common, or jointly — requiring the surviving testator to dispose of the property in accordance with the terms of the will, and showing that the devises are made in consideration of one another. • The word “joint” indicates the form of the will. The word “mutual” describes the substantive provisions. — Also termed joint and reciprocal will. [Cases: Wills  56–68, 100. C.J.S.

Wills §§ 133–165, 2026–2038, 2047–2062.] joint and reciprocal will.See joint and mutual will.

joint will.A single will executed by two or more testators, usu. disposing of their common property by transferring their separate titles to one devisee. — Also termed conjoint will. [Cases:

Wills  56–68, 100. C.J.S. Wills §§ 133–165, 2026–2038, 2047–2062.]

last will.The most recent will of a deceased; the instrument ultimately fixing the disposition

of real and personal property at the testator’s death. — Also termed last will and testament.

“A will is the disposition of real and personal property to take effect after the death of the testator. When the will operates upon personal property, it is sometimes called a testament, and when upon real estate, a devise; but the more general and the more popular denomination of the instrument, embracing equally real and personal estate, is that of last will and testament.” 4 James Kent, Commentaries on American Law *501 (George Comstock ed., 11th ed. 1866).

last will and testament.See last will. living will.See LIVING WILL.

lost will.An executed will that cannot be found at the testator’s death. • Its contents can be proved by parol evidence in many jurisdictions. The common-law presumption — still the view of the overwhelming majority of American jurisdictions — is that there is a presumption of revocation if a lost will is proved to have been in the possession of the testator and has been lost.

[Cases: Wills  234, 293(4), 302(8). C.J.S. Wills §§ 511–512, 602, 632–633.]

mancipatory will (man-sip-i-tor-ee).Roman law. In early and classical law, a formal will

sealed by seven witnesses and submitted to the praetor. See TESTAMENTUM.

mariner’s will.See soldier’s will.

mutual will.(usu. pl.) One of two separate wills in which two persons, usu. a husband and wife, establish identical or similar testamentary provisions disposing of their estates in favor of each other. • It is also possible (though rare) for the testators to execute a single mutual will, as opposed to separate ones. And it is possible (though, again, rare) for more than two parties to execute mutual wills. — Also termed reciprocal will; counter will; double will; mutual testament.

[Cases: Wills  56–68. C.J.S. Wills §§ 133–165, 2026–2038, 2047–2062.]

mystic will.Civil law. A secret will signed by the testator, sealed and delivered to a notary in the presence of three to seven witnesses, accompanied by the testator’s declaration that it is a valid will. • The notary is then required to indorse on the envelope containing the will a statement of all the facts surrounding the transaction, and this is signed by the notary and all the witnesses. — Also termed mystic testament; secret will; secret testament; closed will; closed testament; sealed will; sealed testament. [Cases: Wills  124.]

nonintervention will.A will that authorizes an independent executor. See independent

executor under EX-ECUTOR.

notarial will.A will executed by a testator in the presence of two witnesses and a notary

public.

nuncupative will (n<<schwa>>ng-ky<<schwa>>-pay-tiv         or n<<schwa>>ng-kyoo-p<<

schwa>>-tiv). An oral will made in contemplation of imminent death, esp. from a recent injury. • Nuncupative wills are invalid in most states. Even in states allowing them, the amount that may be conveyed is usu. limited by statute. Traditionally, only personal property may be conveyed. — Also termed oral will; unwritten will; verbal will. [Cases: Wills  136–150. C.J.S. Wills §§ 328–338, 340.]

“Nuncupative (i.e., oral) wills are by statute in almost all States required to be proved by two (sometimes three) witnesses, who were present and heard the testamentary words.” John H.

Wigmore, A Students’ Textbook of the Law of Evidence 299 (1935).

olographic will.See holographic will.

oral will.A will made by the spoken declaration of the testator and usu. dependent on oral testimony for proof. Cf. nuncupative will. [Cases: Wills  136–150. C.J.S. Wills §§ 328–338, 340.]

parliamentary will.Slang. The legislation that governs the distribution of an intestate’s property. • The term arose because the legislature effectively makes an intestate’s will by passing statutes regulating descent and distribution. The terms of the parliamentary will are gathered from the statutes in effect when the intestate died.

postnuptial will (pohst-n<<schwa>>p-sh<<schwa>>l). A will executed after marriage.

pourover will (por-oh-v<<schwa>>r). A will giving money or property to an existing trust. Cf. pourover trust under TRUST.

prenuptial will (pree-n<<schwa>>p-sh<<schwa>>l). A will executed before marriage. • At common law, marriage automatically revoked a spouse’s will, but modern statutes usu. provide that marriage does not revoke a will (although divorce does). But if this marriage was not contemplated by the will and there is nothing otherwise on its face to indicate that the testator intentionally left nothing to any future spouse, the pretermitted spouse may be entitled to a special forced share of the estate. Unif. Probate Code § 2-508. — Also termed antenuptial will. [Cases:

Wills  60. C.J.S. Wills § 142.] reciprocal will.See mutual will.

sealed will.See mystic will.

seaman’s will.See soldier’s will.

secret will.See mystic will.

self-proved will.A will proved by a self-proving affidavit. See self-proving affidavit under

AFFIDAVIT. [Cases: Wills  113. C.J.S. Wills §§ 253–255.]

soldier’s will.A soldier’s informal oral or written will that is usu. valid despite its noncompliance with normal statutory formalities, as long as the soldier was in actual service at the time the will was made. — Also termed seaman’s will; mariner’s will; military testament; soldier’s and sailor’s will.

undutiful will.Civil law. See unnatural will.

unnatural will.A will that distributes the testator’s estate to strangers rather than to the testator’s relatives, without apparent reason. — Also termed (in civil law) undutiful will. [Cases:

Wills  82. C.J.S. Wills § 173.] unofficious will.See inofficious testament under TESTAMENT. unsolemn will.Civil law. A will in which an executor is not named. unwritten will.See nuncupative will. verbal will.See nuncupative will.
[Blacks Law 8th]