Law of Wills

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The object of this article  is to give a detailed view of the underlying principles governing the law of wills, noting the various changes which have taken place, and bringing the subject down to date.


Law of Wills : Few terms  

The legal expression or declaration of a person’s mind or wishes as to the disposition of his property, to be performed or take effect after his death. A revocable instrument by which a person makes disposition of his property to take effect after his death. Any instrument whereby a person makes a disposition of his property to take effect after his death.  A written instrument executed with the formalities of law, whereby a person makes a disposition of his property to take effect after his death.

To constitute “will,” intention must appear that writer  by document itself intended to  make disposition of property effective only after death.

A “will” is not a sheet of paper, nor a number of sheets or pages, but consists of the words written thereon.  And the form of an instrument is of little consequence in determining whether it is a will, but if it is executed with formalities required by statute, and if it is to operate only after death of maker, it is a “will”.

Instruments conveying a present interest are deeds, and not wills, for wills pass no interest until after the death of the maker; An instrument, although in form of a bill or note, which is intended to have no operation until death of maker, is not “contractual” but is of the nature of a “will.”

“Codicil” to will is distinguished from new “will,” in that the latter revokes the first in its entirety unless otherwise provided therein.

The distinction between a “will” and a “power of appointment” Is that a will concerns the estate of the testator, while an appointment under a power concerns that of the donor of the power.

The difference between a will and a trust is that a will operates from the moment of death, while a trust operates in present to a certain extent.

A gift inter vivos is distinguishable from a will in that such a gift may be made by parol and, upon the acceptance of the gift by the donee, the gift is irrevocable by the donor, while ordinarily a will is required to be in writing, and usually is made in view of the fact of death, and is ineffective until the death of the testator and the admission of the will to probate.

The term will, as an expression of the final disposition of one’s property, is confined to the English laws and those countries which derive their jurisprudence from that source. The term testamentum, or testament, is exclusively used in the Roman civil law and by the continental writers upon that subject. A will, when it operates upon personal property, 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.”

A changeable will : the phrase merely denoting the power which a testator possesses of altering his will during his life-time.

Conditional will: A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or to be defeated. If the happening of an event named in a will is the reason for making the will, it is “unconditional”; but, if the testator intends to dispose of his property in case the event happens, the will is “conditional.

Double will: Called also a “counter,” “mutual,” or “reciprocal” will.

Estate at will: This estate entitles the grantee or lessee to the possession of land during the pleasure of both the grantor and himself, yet it creates no sure or durable right, and is bounded by no definite limits as to duration. It must be at the reciprocal will of both parties, (for, if it be at the will of the lessor only, it is a lease for life,) and the dissent of either determines it.

Holographic will : One that is entirely written, dated, and signed by the hand of the testator himself.

Joint and mutual will:  One executed jointly by two persons with reciprocal provisions, which shows on its face that the devises are made one in consideration of the other.

Joint will: One where the same instrument is made the will of two or more persons and is
jointly signed by them. Such wills are usually executed to make testamentary disposition of joint property. A joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons.

Mutual will: One in which two or more persons make mutual or reciprocal provisions in favor of each other.  “Mutual wills” are the separate wills of two persons which are reciprocal in their provisions, and such a will may be both joint and mutual. Sometimes called a “reciprocal,” “double,” or “counter” will.

Reciprocal will: One in which two or more persons make mutual or reciprocal provisions in favor  of each other.

Self-proved wills : A will which eliminates some of the formalities of proof by execution in compliance with statute. It is made self-proved by affidavit of attesting witnesses in the form prescribed by statute. Most statutes provide that, unless contested, such a will may be admitted to probate without testimony of subscribing witnesses. Statute of wills. See Wills Act, infra. Unofficious will. In the civil law, testamentum inofficium. One made in disregard of natural obligations as to inheritance.

WILL CONTEST. A proceeding sui generis, a suit in rem, having for its purpose determination of question of whether there is or is not a will . Any kind of litigated controversy concerning the eligibility of an instrument to probate as distinguished from validity of the contents of the will.


The Indian Succession Act, 1925     

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ANALYSIS OF  THE SUBJECT

ORIGIN AND DEVELOPMENT OF THE LAW OF WILLS.

THE NATURE OF WILLS AND DEFINITIONS OF TERMS.

CLASSIFICATION AND FORM Of WILLS.

CONDITIONAL OB CONTINGENT WILLS.

DUPLICATE WILLS

CONTRACTS TO MAKE WILLS

PROPERTY WHICH MAY BE DEVISED OR BEQUEATHED.

THE LAW WHICH GOVERNS IN CASES OR CONFLICT.

LEGAL DISABILITIES IMPOSED UPON CERTAIN PERSONS

MENTAL CAPACITY NECESSARY TO MAKE VALID WILL

RULES OF EVIDENCE REGARDING TESTAMENTARY CAPACITY.

SIGNATURE OP THE TESTATOR.

NUMBER AND CHARACTER Of WITNESSES REQUIRED TO THE EXECUTION OF WILLS.

ACKNOWLEDGMENT OF SIGNATURE AND PUBLICATION Of WILLS

ATTESTATION AND SUBSCRIPTION OF WITNESSES.

REVOCATION AND ALTERATION

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THE INVENTORY OF THE ESTATE.

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Taking Probate of will

  • PRELIMINARIES TO THE PROBATE.
  • JURISDICTION OF MATTERS AFFECTING THE SETTLEMENT OF ESTATES.
  • THE MODE OF PROOF OF WILLS BEFORE THE COURT OF PROBATE.
  • SPECIAL FORMS OF PROBATE AND’ OF LETTERS TESTAMENTARY.
  • THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRATION.

Revocation and setting aside a Probate

  • THE REVOCATION OF PROBATE AND ITS CONSEQUENCES BY DIRECT PROCEED
    INGS FOR THAT PURPOSE, AND BY APPEAL

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Revocation of Will

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Mohamadan Law of Wills

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Hindu Law of Wills

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Proof of a Will

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THE APPOINTMENT OF, AND WHO MAY BE EXECUTORS.

  • THE EXECUTOR OF AN EXECUTOR.
  • THE LIABILITY OF THE EXECUTOR OR ADMINISTRATOR PERSONALLY, BY REA
    SON OF HIS OWN ACTS.

THE APPOINTMENT AND DUTY OF ADMINISTRATORS.

  • THE NATURE AND ORIGIN OF THE OFFICE.
  • THE APPOINTMENT OF ADMINISTRATORS, AND THE EXTENT OF THEIR RESPONSI
    BILITY.
  • JOINT EXECUTORS AND ADMINISTRATORS.
  • BONDS.
  • ADMINISTRATION WITH THE WILL ANNEXED.
  • ADMINISTRATION DE BONIS NON.
  • ADMINISTRATION DURING MINORITY.
  • ADMINISTRATION PENDENTE LITE.
  • ADMINISTRATION DURANTE ABSENTIA.
  • OTHER LIMITED ADMINISTRATIONS.

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THE EXPENSES OF THE FUNERAL AND MATTERS INCIDENTAL

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THE PAYMENT OF DEBTS, AND THE ORDER HI WHICH IT SHALL BE DONE

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REMEDIES AGAINST THE PERSONAL REPRESENTATIVE.

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GIFTS MORTIS CAUSA.

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THE ADMINISTRATION AND MARSHALLING OF ASSETS.

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BIGHTS OF THE WIDOW.

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THE DUTY AND RESPONSIBILITY OF TESTAMENTARY TRUSTEES.

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GUARDIANSHIP

  • OF INFANTS, OB PERSONS NOT OF FULL AGE.
  •  GUARDIANSHIP OF PERSONS NON COMPOTES MENTIS.
  • GUARDIANS APPOINTED IN FOREIGN STATE.
  • RESPONSIBILITT OF TRUSTEES, WHETHER SO IN FORM OR BY INTERMEDDLING, FOR THE ESTATE OF THOSE UNDER GUARDIANSHIP
  • OTHER INCIDENTS OF THE OFFICE OF GUARDIAN.

1. The guardian has the same right to recover the property of the ward, either real or personal, which any general owner has .
2. He may recover choses in action, but commonly in name of ward .
3. He may compromise disputed claims, either in favor or against his ward, or submit them to arbitration
4. Has no power to bind either the person or estate of the ward, except for necessaries and the protection of his interests. Discussion of the extent of the word “necessaries,” and of the power and duties of the guardian in procuring them

  • THE TERMINATION OF THE GUARDIANSHIP, AND SETTLEMENT OF THE  GUARDIAN’S ACCOUNT.

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