WILL - The power of the mind which
directs the actions of a man.
In criminal law it is necessary that there should
be an act of the will to commit a crime, for unless
the act is wilful it is no offence.
It is the consent of the will which renders human
actions commendable or culpable, and where there is
no win there can be no transgression.
The defect or want of will may be classed as follows:
1. Natural, as that of infancy. 2. Accidental; namely,
1st. Dementia. 2d. Casualty or chance. 3d. Ignorance.
3. Civil; namely, 1st. Civil subjection. 2d. Compulsion.
3d. Necessity. 4th. Well-grounded fear.
WILL or TESTAMENT - The legal declaration
of a man's intentions of what he wills to be performed
after his death.
The terms will and testament are synonymous, and
they are used indifferently by common lawyers, or
one for the other.
There are five essential requisites to make a good
will.
The testator must be legally capable of making a
will. Generally all persons who may make valid contracts
can dispose of their property by will. See Parties
to contracts. This act requires a power of the mind
freely to dispose of property. Infants, because of
their tender age, and married women, on account of
the supposed influence and control of their husbands,
have no capacity to make a will, with these exceptions,
that infants at common law may dispose of their personal
estate, the males when over fourteen years of age,
and the females when over twelve; this rule in relation
to infants is not uniform in the United States. Persons
devoid of understanding, as idiots and lunatics, cannot
make a will.
The testator at the time of making his will must
have animum test-andi, or a serious intention to make
such will. If a man therefore jestingly or boastingly
and not seriously, writes or says that such a person
shall have his goods or be his executor, this is no
will.
The mind of the testator in making his will must
be free, and not moved by fear, fraud or flattery.
In such cases the will is void or at least voidable.
There must be a person to take, capable of taking;
for to render a devise or bequest valid there must
be a donee in esse, or in rerum natura, and one that
shall have capacity to take the thing given, when
it is to vest, or the gift shall be void.
The will must be put in proper form., Wills are either
written or nuncupative.
A will in writing must be, 1. Written on paper or
parchment; it may be in any language, and in any character,
provided it can be read or understood. 2. It must
be signed by the testator or some person authorized
by him; but a sealing has been held to be a sufficient
signing. And it ought to be signed by the attesting
witnesses. In some states three witnesses are required,
who should sign the will as such at the request and
in the presence of the testator and of each other.
This formality should generally be pursued, as the
testator may have lands in such states which would
not pass without it. 3. It must be published, that
is, the testator must do some act from which it can
be concluded that he intended the instrument to operate
as his will. 4. To make a good will of goods and chattels
there must be an executor named in it, otherwise it
will be a codocil only, and the party is said to die
intestate; in such a case administration must be granted.
A nuncupative will or testament, is a verbal declaration
by a testator of his will before a competent number
of legal witnesses.
Before the statute of frauds they were very common,
but by that statute which has been substantially adopted
in a number of the states, these wills were laid under
many restrictions.
In New York nuncupative wills have been abolished,
except made by a soldier while in actual military
service, or by a mariner while at sea.
It is a rule that the last will revokes all former
wills. It follows then that a man cannot by any testamentary
act impose upon himself the inability of making another
inconsistent with and revoking the first will.
A will voluntarily and intentionally made by a competent
testator, according to the form required by law, may
be avoided, 1st. By revocation and 2d. By fraud.
Among the civilians they have two other kinds of
wills, namely: the mystic, which is a will enveloped
in a paper and sealed, and the witnesses attest that
fact, the other is the olographic; which is wholly
written by the testator himself.
A document under which a will maker (testator) states
his or her intentions regarding: the persons (beneficiaries)
who will receive the will maker's property, the person
or entity (executor) who will carry out the will maker's
wishes, and, if necessary, the person (guardian) who
will care for the will maker's minor children; In
general, any instrument, executed with the required
formalities conferring no present rights but intended
to take effect on the death of the maker, which contains
his intention respecting the disposition of his property.
