Chapter III. Wills

A WILL is a legal declaration of a person’s intentions which is to take effect after his death. In English law a will is not necessarily a disposition of property; the appointment of a guardian for one’s children, or of an executor who will distribute the estate according to law, is a will if accompanied by the proper legal formalities. Ordinarily, indeed, a will is a disposition of property, but it frequently contains other provisions as well, as to the place of one’s burial and other matters.

A will is not, strictly speaking, a contract, for the consent of the beneficiaries under it is not required for its validity, but it partakes of the nature of a unilateral contract, and is usually treated as such by theologians.

Lawyers and theologians are by no means agreed as to the source whence a will derives its effect. Some hold that the power of testamentary disposition is derived from the law of nature, inasmuch as there is nothing to prevent a man from doing some act and at the same time suspending its effect until after his death. Others maintain that the will of a person cannot produce its effect when that person is already dead; no disposition of property can be made by a human will that has ceased to act as far as outward manifestation is concerned. Nor does a will produce its effect until the testator be dead. They conclude, then, that the power of testamentary disposition is derived from positive law. We may, perhaps, hold as certain that the law of nature gives owners of property the right to dispose of it in some way in view of death, but that it does not determine of itself the method of disposition by will. This precise method is a result of the determination of the natural by positive law.

To be valid in English law a will must be made according to the provisions of the Wills Act (1 Vict. c. 26, sec. 9), which enacted “ that no will shall be valid unless it shall be in writing and . . . signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction, and such signature shall be made, or acknowledged, by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

By section 11 of the same Act an exception to the rule that a will must be in writing is allowed in the case of any soldier, being in actual military service, or any mariner or seaman, being at sea. These may make a valid nuncupative will of their personal estate by word of mouth, even if they be minors.

We saw above that it is a disputed point among theologians whether an informal will is valid in the internal forum of conscience, though it be invalid in law. Probably it is valid if it express the intentions of the testator, until a party interested moves to have it set aside. All parties must stand by the decision of the court. A codicil, according to the terminology of modern English law, is a testamentary instrument altering or modifying a will. It requires for its validity the same formalities as does a will, and it may take effect without a will, if no will be forthcoming. A codicil to a particular will, or which refers to the provisions of the will, republishes the will and makes it speak as of the date of the codicil. But a testamentary instrument which is not described as a codicil to a will, and does not refer to a will, has not the effect of republishing the will.

A legacy is a gift in the form of a direction by testamentary instrument that the legal personal representative of the testator shall pay, transfer, or provide some money or thing to the recipient or legatee. The legatee derives his legacy from the executor, not immediately from the testator.

Anyone may bea legatee. A legacy bequeathed to a creditor of the testator is presumed to be in payment of the testator’s debt, but the courts look with disfavour on this doctrine, and are quick to discover reasons for setting it aside. A legacy to an infant may be paid to him if the testator so direct; otherwise the legacy must be retained until the infant attains the age of twenty-one, or paid to his testamentary guardian, or paid into court.

A legacy may be given on condition, either precedent or subsequent. Conditions against change of religion are valid in English law.

A legacy may fail from invalidity of the instrument conferring it, from uncertainty or vagueness of the terms of the bequest, or uncertainty of the person designated; from insolvency of the testator’s estate; from the testator having disposed of the object in his lifetime if the legacy be specific; or from his having paid the legacy in his lifetime; and from the non-fulfilment of a condition on which the legacy was given. ‘The legacy also lapses on the death of the legatee in the testator’s lifetime.

If a legatee has been paid, and the estate subsequently proves to be insufficient either from the discovery of further debts or the loss of assets, he may be compelled to refund his legacy in favour of creditors, and similarly a residuary legatee may be compelled to refund in favour of general legatees.

Legacies ordinarily become due on the death of the testator, but they are not payable for a year, that period being allowed executors in order to collect the assets and to pay the debts.

To secure the safety of trusts and bequests to Catholic objects, attention must be paid to various provisions of English law. The rule against perpetuities is designed to prevent property from being tied up permanently, and to obtain this end it requires that every use or trust must be so limited as necessarily to vest within a life or lives in being and a further period of twenty-one years. A tolerably large class of objects technically called ‘ charitable’ has, however, been exempted from this rule. Among these objects are the promotion of any form of lawful religion, the relief of the aged and poor, the maintenance of the sick, the establishment of free schools, and others of a similar kind. Such trusts and bequests as English law considers to be “ charitable ” are therefore upheld, though they may infringe the rule against perpetuities. According to the English penal laws, bequests for prayers and Masses for the dead were void as being bequests for ‘‘ superstitious uses,” and trusts and bequests for the benefit of religious communities of men ‘‘ bound by monastic or religious vows ”’ were also void, but these relics of penal times have now been abolished. ‘The Irish courts hold bequests for Masses to be for “ pious uses ” and not void, but subject to the rule against perpetuities as not being “‘ charitable ” in the technical sense. Trusts and bequests of land or of money to be laid out on the purchase of land are also subject to the Mortmain Acts.

These legal provisions do not bind the conscience with regard to legacies left to Catholic pious causes, nor is a Catholic justified in invoking them to make a pious legacy void for his own gain, but they should be known so that property left for Catholic purposes may be expended in accordance with the will and intention of the testator or donor (Can. 2348).

Wills and bequests for pious purposes among Catholics are governed by canon law, which requires nothing more than certain proof of the intention of the testator in order to make a testamentary disposition of property valid. It follows from this that bequests to pious causes contained in an informal will are valid, if there is morally certain evidence that it was the intention of the testator to make them. This doctrine has been frequently confirmed by answers of the Roman Congregations to questions proposed to them (Can. 1560, SEC. 43 1513, SEC. 2).

Those who have not yet attained the use of reason and persons of unsound mind are incapable of making a will by the law of nature. Religious who are solemnly professed are incapable of making a valid will by the law of the Church. Minors under the age of twenty-one cannot make a valid will, according to English law.

A will that has been made under duress and undue influence will be set aside if appeal be made to English courts. Women married after December 31, 1882, can by will or otherwise dispose of their separate property whether real or personal, and women married before that date can by the Married Women’s Property Act, 1882, dispose in the same manner of all property which accrues to them after that date.

A person who is capable of making a will may bequeath his property, both real and personal, to whomsoever he wishes; the legitim or reasonable part is not recognized by modern English law. This, of course, does not do away with the moral obligation of providing for those who have claims on the testator by reason of kindred or other ties. Still, for just cause, the testator may take advantage of the law, and leave nothing to one who otherwise would have been benefited under his will.

If a person dies intestate, his property will be distributed among his next of kin according to the statutes of distribution.

A person may be under a moral obligation of making a will from the command of a lawful superior, or because quarrels and dissensions about his property will be the consequence of his dying intestate.

A will is revoked by the subsequent marriage of the testator, by the due execution of a subsequent will which is inconsistent with the former, or by some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed; or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same. Such are the provisions of section 20 of the Wills Act, 1837, and section 21 should also be noted. It is as follows: ‘“‘ No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect (except so far as the words or effect of the will before such alteration shall not be apparent) unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of, or opposite to, a memorandum referring to such alteration, and written at the end or some other part of the will.”

The execution of a will is usually confided by the testator to a person or persons named by him and who are called the executors. Anyone who is capable of making a will may be made an executor, as may even a minor, though he cannot act until he attains full age. One or several may be appointed, but no one is bound to accept the office. If a person dies intestate, or if no executor was appointed in the will, or if he who was appointed refuse to act, an administrator will be appointed by the court to administer the estate. The widow or widower or the next-of-kin of the deceased person is as a rule the person to be selected. The will must be proved in the Probate, Divorce, and Admiralty division of the High Court. Probate in common or non-contentious form may be granted in the district registry within whose district the deceased had a fixed place of abode. Where the assets are small the county court has jurisdiction in contentious cases, otherwise these must be settled in the High Court.

An executor is the legal representative of the testator, and his duties are:

(a) 'To bury the deceased in a manner suitable to his estate. There is no property in a dead body, and a direction by will as to the disposition of the testator’s body cannot be enforced by English law. Thus the executor would not be bound to have the body of the testator cremated, though directions to that effect were contained in the will.

Ecclesiastical law forbids cremation under severe penalties, and declares directions for cremation inserted in wills of no effect (Can. 1203; 1240, sec. 1, 5; 2339).

(b) 'To obtain probate within the prescribed time.

(c) To collect the effects of the deceased with reasonable diligence.

(d) To pay the debts of the deceased in the order and manner prescribed by law, and in general in the following order: funeral expenses, expenses of probate, Crown debts, debts having priority by statute, debts of record, debts by specialty and simple contract. The executor may voluntarily pay an inferior debt before a superior one of which he had no notice, and he is not at liberty to pay a debt which by law cannot be enforced against the estate, with the exception of a debt barred by time according to the statute of limitations.

(e) To distribute the estate according to the terms of the will.

Where there is no executor these duties devolve on the administrator appointed by the court, who, after payment of debts, distributes the estate in accordance with the will, if there is one, and if there is no will, then in accordance with the statutes of distribution. To enable the executor or administrator to fulfil these various duties he is allowed a year by law before he can be compelled to pay legacies or to distribute the estate.