Free to follow every thread. No paywall, no dead ends.
Will and testament: the story on HearLore | HearLore
Will and testament
The written will was invented by Solon, an Athenian lawgiver, as a device intended solely for men who died without an heir. Before this legal innovation, the disposition of a dead person's estate was a matter of social custom rather than written law. Plutarch records this historical shift, noting that the concept of a written declaration of final wishes was a radical departure from tradition. Originally, the terms will and testament were distinct, with will applying to real property and testament to personal property, yet records show these terms have been used interchangeably for centuries. This evolution from custom to codified law laid the groundwork for the modern legal system, allowing individuals to control their legacy beyond the grave.
The Language of Death
The English phrase will and testament is derived from a period in English law when Old English and Law French were used side by side for maximum clarity. This legal doublet, similar to breaking and entering or peace and quiet, ensured that the document was understood by all parties regardless of their linguistic background. The distinction between the two words has largely vanished, with the word will now validly applying to both personal and real property. In some jurisdictions, the exordium clause serves as the first paragraph, where the testator identifies themselves, states their legal domicile, and revokes any prior wills. This specific language is crucial for establishing the document's validity and ensuring that the testator's final wishes are clearly understood by the court.
The Soldier's Last Words
In England, the formalities of wills are relaxed for soldiers who express their wishes on active service, creating a unique category known as a serviceman's will. These documents often lack certain formalities required of civilian wills, particularly under English law, acknowledging the urgency and danger of military life. A minority of jurisdictions even recognize the validity of nuncupative wills, which are oral or dictated, particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used. The case of Cecil George Harris in Saskatchewan, Canada, on the 8th of June 1948, illustrates the lengths to which individuals might go to ensure their wishes are heard. Trapped under his tractor, Harris carved a will into the fender, which read that his property should go to his wife. The fender was probated and stood as his will, now displayed at the law library of the University of Saskatchewan College of Law.
Who invented the written will and for whom was it originally intended?
Solon, an Athenian lawgiver, invented the written will as a device intended solely for men who died without an heir. Before this legal innovation, the disposition of a dead person's estate was a matter of social custom rather than written law.
What is the origin of the phrase will and testament in English law?
The English phrase will and testament is derived from a period in English law when Old English and Law French were used side by side for maximum clarity. This legal doublet ensured that the document was understood by all parties regardless of their linguistic background.
What happened in the case of Cecil George Harris on the 8th of June 1948?
Cecil George Harris carved a will into the fender of his tractor while trapped under it, stating that his property should go to his wife. The fender was probated and stood as his will, now displayed at the law library of the University of Saskatchewan College of Law.
Who wrote the longest known legal will and what were its specifications?
The longest known legal will is that of Englishwoman Frederica Evelyn Stilwell, probated in 1925. It was 1,066 pages long and had to be bound in four volumes, covering an estate worth $102,000.
How did Julius Caesar's will impact Roman politics and Octavian's rise to power?
Julius Caesar's will named his grand-nephew Octavian as his adopted son and heir, funding and legitimizing Octavian's rise to political power in the late Republic. Antony's officiating at the public reading of the will led to a riot and moved public opinion against Caesar's assassins.
Which countries have ratified the Convention providing a Uniform Law on the Form of an International Will?
The Convention is in force in Australia, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia. The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified.
The longest known legal will is that of Englishwoman Frederica Evelyn Stilwell Cook, probated in 1925. It was 1,066 pages long and had to be bound in four volumes, covering an estate worth $102,000. In stark contrast, the shortest known legal wills are those of Bimla Rishi of Delhi, India, consisting of four characters in Hindi meaning all to son, and Karl Tausch of Hesse, Germany, with the phrase Alles meiner Frau, meaning all to wife. The absolute shortest will is that of Shripad Krishnarao Vaidya of Nagpur, Maharashtra, consisting of five letters: HEIR'S. These extremes highlight the diversity of human expression in the face of death, from the most elaborate legal documents to the most concise declarations of intent.
The Roman Inheritance
In antiquity, Julius Caesar's will named his grand-nephew Octavian as his adopted son and heir, funding and legitimizing Octavian's rise to political power in the late Republic. This document provided him the resources necessary to win the civil wars against the Liberators and Antony and to establish the Roman Empire under the name Augustus. Antony's officiating at the public reading of the will led to a riot and moved public opinion against Caesar's assassins. Octavian's illegal publication of Antony's sealed will was an important factor in removing his support within Rome, as it described his wish to be buried in Alexandria beside the Egyptian queen Cleopatra. This historical event demonstrates the profound political impact a will can have, far beyond the distribution of property.
The Modern Legal Battle
In the modern era, the Thellusson v Woodford will case led to British legislation against the accumulation of money for later distribution and was fictionalized as Jarndyce and Jarndyce in Charles Dickens's Bleak House. The Nobel Prizes were established by Alfred Nobel's will, a testament to his desire to leave a legacy of peace and scientific advancement. Charles Vance Millar's will provoked the Great Stork Derby, as he successfully bequeathed the bulk of his estate to the Toronto-area woman who had the greatest number of children in the ten years after his death. The prize was divided among four women who had nine, with smaller payments made to women who had borne 10 children but lost some to miscarriage. Another woman who bore ten children was disqualified, for several were illegitimate. These cases illustrate the complex and sometimes controversial nature of wills in the modern legal system.
The International Will
In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will, was concluded in the context of UNIDROIT. The Convention provided for a universally recognised code of rules under which a will made anywhere, by any person of any nationality, would be valid and enforceable in every country that became a party to the Convention. These are known as international wills. It is in force in Australia, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia. The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified. International wills are only valid where the convention applies. For individuals who own assets in multiple countries and at least one of those countries are not a part of the Convention, it may be appropriate for the person to have multiple wills, one for each country.
The Probate Process
After the testator has died, an application for probate may be made in a court with probate jurisdiction to determine the validity of the will or wills that the testator may have created. In most cases, during probate, at least one witness is called upon to testify or sign a proof of witness affidavit. In some jurisdictions, however, statutes may provide requirements for a self-proving will, in which case witness testimony may be forgone during probate. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. In some jurisdictions, only an original will may be admitted to probate, even the most accurate photocopy will not suffice. Some jurisdictions will admit a copy of a will if the original was lost or accidentally destroyed and the validity of the copy can be proved to the satisfaction of the court. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.