Revocation of wills; executors

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.

833. • I. A testament, under whatever form it has been made, can always be revoked at the will of the testator, because a testament by its nature is an essentially revocable act; therefore the testator retains dominion of his goods up to death. - Thus from every law.

¹ On the title above. Concerning another cause on account of which testaments are weakened, namely the passing over of children, see the Jurisconsults.

II. Revocation of a testament can be made in a twofold way:

1. Expressly, or: 1. by destruction of the testament; 2. by an act drawn up before a notary, by which a change of will is expressed; 3. by a new testament contrary to the former. But then the revocation is not judged complete unless the dispositions of the new testament are contrary to all the dispositions of the former.

2. Tacitly, by donation, sale, exchange, destruction, or any disposition whatever of the thing bequeathed, by which the change of the testator is manifested ².

² Even with Gallic law considered, which the Author follows in this place, these things do not pertain to tacit revocation of a testament, but to the withdrawal of legacies.

The lapse of a testament is referred to revocation of the testament; this is had when testamentary dispositions, although valid from the beginning, nevertheless become infirm because of certain circumstances: e.g. if the legatee dies before the testator, or before the execution of some condition, if the thing bequeathed perishes, etc.

834. • The executor of a testament is he whom the testator has named for executing the testamentary dispositions. But when no one has been named, the execution of the testament pertains to the heirs. Concerning the execution of a testament these things are to be held ¹:

¹ The things which the Author adds in this place pertain almost entirely to Gallic law.

1. In order that someone be executor of a testament, it is necessary that he have the capacity of obliging himself. Hence interdicted persons, minors, even with the tutor consenting, and, from Gallic Law, wives without the consent of the husband, cannot be executors. Religious can be executors by permission of their Prelate, unless the Rule of the Order stands in the way.

2. Several executors of a testament can be instituted, and when one is absent, the other can proceed to the execution of the testament. The executor of a testament does not transmit this office to his heirs.

3. The executor ought to watch carefully: 1. that seals are affixed, if among the heirs there are minors, interdicted persons, or absent persons; 2. that an inventory be made, with the nearest heir present or duly summoned; 3. that movables be sold, if money is lacking for the payment of legacies; 4. that he urge the execution of the testament.

4. Expenses which are made by the executor for the sake of fulfilling his office must be paid from the hereditary things. No one can be compelled to accept that office; but if he accepts, he is held to an account of the administration.

704. 1. By revocation; for a testament is revocable from its nature, since the will of man is ambulatory until death. If the testator under the faith of an oath has promised that he will not revoke the testament, he indeed sins against religion by revoking it without a legitimate reason; but not against justice, because an oath cannot change the nature of a testament, which is of itself revocable; accordingly, even in this case, the revocation would have force.

But a testament is revoked: (A) explicitly, by a new testament in which the old one is wholly abrogated or abrogated as regards some dispositions; or by an act before a notary, by which a change of will is declared.

(B) Implicitly: (a) by making a new testament, in which indeed nothing is said about the former one, but dispositions contrary to those which were contained in the old one are contained; (b) by alienation of the legated thing, although the alienation is null, or the testator afterward recovers the thing; for such alienation signifies a change of mind clearly enough; (c) by laceration, obliteration, or destruction of the testament, carried out by the testator himself, or by his order.

705. 2. By caducity, which is verified when dispositions valid from the beginning cannot obtain their effect because of a supervening impediment:

(a) if the legatee dies before the testator; for since testamentary donation is made in consideration of the person, it does not pass to the heirs; (b) if the legatee dies before the condition on which the legacy depended is fulfilled; (c) if the legated thing has totally perished while the testator was living; or, after his death, without any fault of the heir: for then the thing perishes to the owner; (d) when the legatee renounces the legacy after the death of the testator; or becomes incapable of receiving it: this occurs in France only when he undergoes one of those penalties which formerly drew civil death after them.

706. 3. By rescission, which the heirs can seek for a threefold cause: (a) if the legatee does not execute the conditions imposed by the testator; (b) because of grave ingratitude of the legatee toward the testator; thus, in France, if he has plotted against the life of the testator, - has been guilty of cruelties, a delict, or grave injury against him, - or has brought grave injury upon his memory; (c) if there is some cause of nullity from lack of legal forms or from incapacity of the parties.

495. A testament can cease in three ways: by revocation, lapse, and rescission.

1. By revocation (herroeping): for a testament by its nature is revocable, and man can change his will up to death.⁷ But a testament is revoked (a. 1035-1038):

⁷ This does not hold, however, concerning mutual pacts, where they are admitted: these cannot be revoked except by mutual consent.

A. Explicitly, by a new testament in which the preceding one is formally rescinded, either entirely or as to certain dispositions, or by an act before a notary, by which a change of will is declared;

B. Implicitly or tacitly: a) by making a new testament in which nothing is said about the former, but dispositions are contained contrary to those which were had in it (tegenstrijdige schikking);

b) by any alienation whatever of the thing bequeathed (vervreemding), even if the alienation is null or the testator afterward has recovered the thing: for alienation clearly signifies a change of mind;

c) by tearing, obliteration, or destruction of the testament (verscheuring of vernietiging), carried out by the testator himself or at his command.

If the testator under vow or under the faith of an oath has proposed or promised to another accepting that he would not revoke the testament, and nevertheless without legitimate reason he revokes it, he sins against religion; but not against justice, because a vow or oath cannot change the nature of a testament, which is essentially revocable. And therefore in this case revocation has force; all the more because a simple promise of not revoking is invalid from a. 1130.

2. By lapse (verval), which is verified when dispositions valid from the beginning cannot obtain their effect because of a supervening impediment (a. 1039-1043):

a) If the legatee dies before the testator: for testamentary donation is made with a view to the person, and therefore does not pass to heirs.

b) If the legatee dies before the condition of uncertain event on which the legacy depended is fulfilled.

c) If the thing bequeathed has totally perished while the testator was living; or after his death, but without any fault of the heir: for then the thing perishes to its owner.

d) If the legatee renounces the legacy after the death of the testator, or becomes unable to receive it.

3. By rescission or annulment (verbreking), which heirs can petition for a threefold cause (a. 1046-1047):

a) If the legatee does not execute the conditions imposed by the testator (a. 954).

b) On account of grave ingratitude of the legatee toward the testator, as if he has plotted against the life of the testator, has been guilty of cruelties, delict, or grave injury against him, or has inflicted grave injury on his memory (a. 955, 1047, and 727 sq.).

c) If there is some cause of nullity from lack of legal forms or incapacity of the parties (a. 893).

I. A testament, under whatever form it has been made, can always be revoked at the will of the testator, because a testament by its nature is an essentially revocable act; therefore the testator retains dominion of his goods until death. Thus all laws establish; wherefore in Roman law, L. 4 ff. de adimendis, it is said: "The will of one testating is ambulatory until the last breath of life."

II. Revocation of a testament can occur in many ways: 1st, if it is deliberately destroyed by burning, tearing, or obliteration; 2nd, if a new one is made, which contains either clauses openly revoking the first or dispositions not only diverse, but opposite and incompossible with the first testament; 3rd, if after making the testament the testator takes a wife and is given offspring, yet in such a way that provision had not previously been made for the wife and offspring; 4th, if the goods concerning which there is discussion in the testament are sold or a pact is made that they be sold. - Cf. Kenrick, n. 33. - Kent, Comment. vol. 4, nn. 520 and 532. - Wells, Every Man, etc., p. 93.

I. The executor of a testament is called he to whom the office belongs of causing all the conditions and clauses of the testament to be put into execution according to the intention of the testator and the right interpretation of the words contained in it.

II. The executor of a testament is designated by the testator himself; or if the testator has not done this, or the one who has already been designated does not accept or cannot accept the office, then from Roman law the heir is held as executor; but according to our laws he is designated by the Court.

III. According to our laws, generally speaking, all can be executors of testaments, except those who cannot make testaments.

IV. There are many offices of the executor of a testament, but the principal ones are: that he obtain in the Court the authentication or proof of the validity of the testament; that he institute an inventory of the goods; that he satisfy creditors according to the order prescribed by law; and finally that he distribute justly and faithfully the goods which remain to the heirs and legatees. - Cf. Kenrick, nn. 34 and 35. - Wells, Every Man, etc., pp. 94 and 95. - Bouvier, Law Dictionary, under the word Executor.

The wills of the faithful donating or leaving their property for pious causes, whether by an act between the living or by an act on account of death, are to be fulfilled most diligently, even concerning the manner of administration and disbursement of goods, with the prescription of can. 1515, §3, preserved (Can. 1514).

§1. Ordinaries are the executors of all pious wills, both on account of death and between the living.

§2. By this right Ordinaries can and ought to watch, even through visitation, that pious wills are fulfilled; and other delegated executors, having discharged the office, must render an account to them.

§3. Clauses contrary to this right of Ordinaries, added to last wills, are to be held as not added (Can. 1515).

§1. A cleric or religious who has received fiduciary goods for pious causes, whether by an act between the living or from a testament, must inform the Ordinary concerning his trust, and indicate to him all goods of this sort, whether movable or immovable, with the burdens attached; but if the donor expressly and altogether forbids this, let him not accept the trust.

§2. The Ordinary must require that fiduciary goods be placed in safety, and watch for the execution of the pious will according to the norm of can. 1515 (Can. 1516).

Not unfittingly is the will of a man called Ambulatory until death leg. 4. ff. de adimend. leg. since it often uses to walk and return by the same way, as is clearly proved in the revocations of testaments, on whose occasion this was said.

And first indeed the laws concede to the testator, until his death, to declare his own testament void, unless he be a Religious who made his testament before the solemn emission of his vows; the reason of each is, because until death the testator commonly has free dominion over his own goods; not so if he be a professed Religious: And this stands thus even if the testator should have sworn or promised that the testament of his last will would be irrevocable: because what nature can do can always be retracted, and cannot be made irrevocable by any extrinsic addition: Yet understand this of valid revocation; for a testament confirmed by an oath will not be able licitly to be revoked, since thus God would be brought in as witness to falsehood: Vasquez, however, says that in the forum of conscience a second testament would be not only illicit but also invalid, if the first had earlier been strengthened by oath; the opposite, however, is the more common view, for many things are done validly that are not done licitly.

Nor does it stand in the way that the Oath is accessory to the testament, as to a principal, whose nature, licitly revocable of itself, it ought to follow. For this is true, when the conditions are not expressly excluded; but one swearing that he will not revoke is held to exclude all revocatory conditions, since he intends to expel that celebrated condition: unless it be revoked. Let the following be read on this matter, Vasquez opusc. de testam. cap. 2. Couar. 2. parte rubr. de testam. Antonius Gomez in 3. l. Tauri, Sylvester verbo testamentum 1. §. 12. With Bonacina de contract. disp. 3. quaest. 17. puncto 6. who adds that any form of words by which it is established that the testator earlier held his testament void suffices; nor is it necessary that he institute anew, even if he have used only a verbal revocation, although this is true only of royal law, as Vasquez, to be cited, has it.

Second, a testament is revoked by the breaking of the writing, of the seal, or of another necessary solemnity: but if some part be erased or cancelled with interlineations, the remainder of the testament is valid; and only that part can be called into doubt. So it is gathered ex leg. ad testam, §. si signa, ff. de testamentis, et leg. nostram, C. de testam. These, however, are modified, for if the illicit manner be proved in which such breaking or cancellation was made, or if the tabellion teach that the breaking and cancellation were made before his sign and do no harm, the testament is not invalidated, as is said in leg. 1. §. 1. ff. de iis, quae in testam. delentur. Likewise if there be two writings, of which only one is broken; the other still subsists; because although they are one in the thing, they are nevertheless two in proof; which Vasquez nevertheless so limits, that both writings must be equally principal; for if one be a transcript and transumpt held by the testator, although the Original remained with the Tabellion; this does not help, if the former be cut apart; so teaches Paulus Castr. in leg. nostram, C. de testam. quaest. ult. It must nevertheless be seen whether it was broken by the will of the testator himself, or against his pleasure.

Third, the first testament is invalidated by the making of a second, which is solemn and according to the disposition of law; which is true to that point, even if it were made before the Prince himself; who cannot by simple assistance take away the liberty of testating, which follows the dominion of goods until death; truly, if by special mandate he should declare such a testament irrevocable, such a mandate would have to be stood by; for as the laws can prohibit, for a just cause, the revocability of testaments, so also can the Prince.

Fourth, the first testament, though valid, can be revoked by a second less solemn one, provided it be completed with five witnesses, so long as those coming as heirs ab intestato be instituted in it: but that this may stand, three conditions are required. The first, that in the first testament some extraneous heir be named, for if one or more coming ab intestato were there, the testament still subsists. The second condition is, that those coming ab intestato be nearer heirs. The third is, that all those nearer heirs, coming ab intestato, be of the first grade, nor does any one of them alone suffice: which conditions are only of the common law; but by royal law it is otherwise determined, at least in nuncupative testaments; which are always equally solemn with the first ones, since they must have five, or at least three witnesses with the tabellion; so Vasquez loco citato.