Will and testament

• 1. Introduction

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  A will and testament is a legal document through which a person declares who receives their property after they die. The testator, as the maker of the document is called, also names an executor to manage that property until it is fully distributed. What sounds like a simple administrative act has, over centuries, toppled governments, sparked riots, provoked contests involving childbirth, and been scratched into a tractor fender by a dying farmer in Saskatchewan.

  The phrase itself carries a history. "Will" and "testament" were once understood to cover different types of property, but the terms have long been used interchangeably. Together they survive as one of English law's characteristic doublets, constructed during an era when Old English and Law French ran side by side. You hear the same habit in "breaking and entering" and "peace and quiet".

  Who gets to decide what happens to their estate, and under what limits? The answers vary more than most people assume. And the document a farmer carved into a steel fender in 1948 turns out to be legally identical in ambition to the will Julius Caesar signed in the final years of the Roman Republic.

• 2. Ancient Roots

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  According to Plutarch, the written will was invented by Solon, the Athenian lawgiver. In its original form, it served a narrow purpose: it was a device for men who died without an heir, a way to direct property when the natural line of descent had no one to receive it.

  The Romans expanded that instrument far beyond its origins. Julius Caesar's will named his grand-nephew Octavian as his adopted son and heir. That single document funded and legitimized Octavian's path to power in the late Republic. It gave him the resources to win civil wars against the Liberators and against Mark Antony and to establish what became the Roman Empire under the name Augustus.

  Antony's reading of Caesar's will to the Roman public provoked a riot and turned popular opinion against Caesar's assassins. The will's power to mobilize a crowd was itself a political weapon. Octavian later used that lesson when he published Antony's sealed will without authorization, revealing its contents to Rome. What it described, the wish to be buried in Alexandria beside Cleopatra, stripped Antony of his remaining support within the city. A document intended to distribute property had instead destroyed a man's political standing.

• 3. Freedom and Its Limits

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  Common law systems such as those in England and the United States generally allow a testator wide freedom in directing their estate. Civil law systems frequently do not. Complete freedom of disposition is the exception in global practice, not the rule.

  In England and Wales, a spouse could be disinherited by a will from 1933 to 1975. The Inheritance (Provision for Family and Dependants) Act 1975 closed that window; since then, a court may override a will that leaves a surviving spouse or dependent without what the law calls "reasonable financial provision".

  In the United States, Louisiana occupies a distinct position. A minimum share is guaranteed to surviving children there, except in specifically enumerated circumstances, a rule that mirrors what many civil law countries apply. Louisiana also requires that any will be attested by two witnesses and notarized by a notary public, making it the only American state to demand both. LGBT advocates have noted that the inheritance rights available to spouses have historically been difficult to secure for same-sex partners. Even where a same-sex partner executed a valid will, courts in the past showed greater willingness to strike it down on grounds such as incapacity or undue influence when disgruntled heirs challenged it.

• 4. The Many Forms of a Will

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  Not every will is a typed, witnessed, and notarized document. A holographic will is written entirely in the testator's own hand. Its defining advantage is that it generally requires no witnesses to be valid, though its authenticity may need to be proved later. In Louisiana, this type of document is called an olographic testament and must be entirely written, dated, and signed in the testator's handwriting. Any additions or corrections to it must also be handwritten to have legal effect.

  For soldiers and sailors, many jurisdictions relax the formalities further. In England, a serviceman's will covers any will expressed by a person in active military service, and certain standard requirements simply do not apply to it. A minority of jurisdictions go further still and recognize nuncupative wills, which are entirely oral, particularly for military personnel or merchant sailors.

  The joint will first appeared in documented English law in 1769. Unlike reciprocal or mirror wills, which are separate documents making similar provisions for two people, a joint will is a single instrument and binds the surviving testator once the first has died. It is the most constrained form on the list: the survivor cannot simply write a new will and set the earlier arrangement aside.

• 5. Revoking What You Wrote

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  Physically destroying a will, by burning, tearing, or striking out the signature, revokes it in most jurisdictions. A testator who is physically incapacitated may have someone else perform that act, provided it happens in the testator's presence and in the presence of witnesses. When a will was last seen in the testator's possession but is found mutilated or cannot be located after their death, some jurisdictions presume it was deliberately destroyed.

  Marriage automatically revokes a will in England and Wales; the law presumes a testator will want to reconsider. Divorce does not revoke a will, but in many jurisdictions it is treated as if the former spouse died before the testator, so that person receives nothing.

  The doctrine of dependent relative revocation, known by the initials DRR, addresses mistakes. Where a testator revokes a will under a false belief, a court may disregard that revocation. The source gives a precise illustration: Tom has a will bequeathing five thousand dollars to his secretary, Alice Johnson. He crosses out that clause and writes "seven thousand dollars to Alice Johnson" in the margin but does not sign or date the addition. Most jurisdictions would find the original clause revoked but the new amount ineffective. Under DRR, because Tom was acting on the mistaken belief that the marginal note was sufficient, the revocation is undone. Alice Johnson receives five thousand dollars, not seven thousand and not nothing. The doctrine will not help if Tom instead crossed out Alice's name and wrote in Betty Smith's without signing; Alice's gift is revoked and stays revoked, because Tom's intent to remove Alice was clear and independent of the defective gift to Betty.

• 6. Notable Wills and Records

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  Frederica Evelyn Stilwell Cook holds a record that no one seems eager to compete for. Her will, probated in 1925, ran to 1,066 pages and required four volumes to bind. Her estate was worth one hundred and two thousand dollars. At the opposite end of the scale, Bimla Rishi of Delhi and Karl Tausch of Hesse each produced some of the shortest valid wills on record: Rishi's consisted of four Hindi characters meaning "all to son", and Tausch's read "Alles meiner Frau", which translates as "all to wife". The shortest of all is attributed to Shripad Krishnarao Vaidya of Nagpur, Maharashtra, consisting of five letters: "HEIR'S".

  The Thellusson v Woodford case produced legislation in Britain against the accumulation of money for later distribution and inspired Charles Dickens to fictionalize it as Jarndyce and Jarndyce in Bleak House. Alfred Nobel's will established the Nobel Prizes. Charles Vance Millar's will created what became known as the Great Stork Derby, bequeathing the bulk of his estate to the Toronto-area woman who had the most children in the ten years following his death. The prize was ultimately divided among four women who each had nine children, with smaller payments going to women who had borne ten but lost some to miscarriage. One woman who bore ten was disqualified because several were illegitimate.

  The most tangible will may be the one Cecil George Harris scratched into the fender of his tractor on the 8th of June 1948 in Saskatchewan, Canada. Harris had become trapped under the tractor and believed he would not survive. He carved: "In case I die in this mess I leave all to the wife. Cecil Geo. Harris." Though found alive, he died later of his injuries. The fender was admitted to probate as a valid holographic will and is currently on display at the law library of the University of Saskatchewan College of Law.

• 7. International and Probate Frameworks

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  In 1973 an international convention concluded under UNIDROIT established what are now called international wills. The Convention providing a Uniform Law on the Form of an International Will was designed so that a will made anywhere, by a person of any nationality, would be valid and enforceable in every country party to the agreement. It is in force in Australia, Belgium, Bosnia-Herzegovina, Canada in nine provinces but not Quebec, 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 each signed but not ratified.

  The United States has not ratified the Convention on behalf of any state, but the uniform law has been enacted in twenty-three states and the District of Columbia. For individuals who own assets in multiple countries where the Convention does not apply, maintaining one will per country can reduce estate taxes and avoid jurisdictional conflicts during probate.

  Probate is the legal process by which a court determines whether a will is valid and appoints an executor. In most jurisdictions, at least one witness must testify or sign a proof-of-witness affidavit. A self-proving will, prepared with proper affidavits at the time of execution, can allow a court to skip that step. There is often a time limit for submitting a will to probate, commonly thirty days. If a will is ruled invalid, the estate passes under intestacy law, as if no will had ever been written. An accidental physical destruction is one of the few grounds on which a copy may be admitted in place of the original.