Chapter IV - Wills

  • 1. Two kinds.
  • 2. Limitations of wills.
  • 3. How to make a will.
  • 4. On executive duties.
  • 5. Administrators.
  • 6. Debts.
  • 7. Final settlement.

Whether farmer, manufacturer, merchant or professional man, and whether in youth, mid-age or declining years, every owner of personal or real property, or both, should make a will.

If you have not made a will, get over the foolish notion that it is a premonition of death, and do so at once.

A will is a written and signed declaration of the disposition one wishes to have made of his property in the event of his death.

The maker of a valid will must be of sound mind and not less than twenty-one years of age.

Women, whether married or single, if of proper age, are competent to make a will.

OF TWO KINDS

A will may be written or unwritten.

Unwritten wills are known as "nun-cupative." Nun-cupative wills are employed only when through accident, or sudden seizure by a fatal disease, the time necessary to write and sign a will cannot be had.

The unwritten will must be authenticated by reliable and unprejudiced witnesses, and generally it can dispose of personal property only.

In the written will no precise form is necessary, though when drawn by a lawyer it usually begins with some such form as: "I, George Brown, being of sound mind and good understanding, do make and declare this to be my last will and testament", etc.

A will is not necessarily permanent. It may be cancelled or changed in any way by the maker before his death, or a new will can be made.

The last will cancels all preceding wills.

An addition to an existing will is known as a "codicil."

A man making a will is called a testator.

A woman making a will is called a testatrix.

LIMITATIONS OF WILLS

A man has a right to dispose of his property by will or gift as he chooses, but if he is married the law compels him to consider the rights of another.

The husband cannot, by will or otherwise, deprive his wife of her "right of dower" in his real estate and appurtenances.

Unless she chooses to accept, the wife need not accept other property that is bequeathed her in lieu of dower.

The wife's dower interest in her husband's estate is a life interest only. On her death it goes to the husband's heirs, as if there had been no widow.

In some states there is no right of dower.

HOW TO MAKE A WILL

The will not only shows the purpose of the testator, but it serves as a bar to litigation among the natural heirs.

Any man or woman can write out his or her will, but unless quite familiar with such work it is better to employ a lawyer for the purpose.

The person named in the will to carry out the purpose of the testator is known as the "executor".

No person, not twenty-one at the time the will is proved can act as an executor.

Neither a convict, an imbecile, nor one known to be a drug fiend or an habitual drunkard, is eligible for the post of an executor. If an executor be appointed against his will, the law does not compel him to serve.

There must be at least two witnesses to a will, some states require three.

The witnesses need not know the contents of the will, but they must understand before signing that it is a will, and they must see it signed by the testator.

Under the common law the will is void if the witnesses are beneficiaries.

In some states a will so witnessed is valid, except that the witnesses cannot receive their legacies.

All the witnesses should sign at the same time and add their addresses.

If an heir at law, say a child, is not mentioned in the will, the law assumes that he was forgotten by the testator and generally gives the share the heir would be entitled to if there were no will.

At the end of the will the testator, in the presence of the witnesses, should write his name in full.

Wills Page 02

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