Resources for the Comprehensive Geriatric Assessment based
Proactive and Personalised Primary Care of the Elderly
Advance Care Planning :
The word "will" validly applies to both personal and real property.
A will may also create a testamentary trust that is effective only after the death of the testator.
Requirements for creation
Any person over the age of majority and of sound mind (having appropriate mental capacity) can draft his own will with or without the aid of a lawyer.
Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:
The testator must clearly identify himself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
The testator should declare that he revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent.
However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.
The testator may demonstrate that he has the capacity to dispose of his property ("sound mind"), and does so freely and willingly.
The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries).
There may be extra witnesses, these are called "supernumerary" witnesses, if there is a question as to an interested-party conflict.
If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either disallowing them to receive under the will, or invalidating their status as a witness.
The testator's signature must be placed at the end of the will.
If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.
One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.
There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall.
A common error, for example, in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.
Some jurisdictions recognize a holographic will, made out entirely in the testator's own hand, or in some modern formulations, with material provisions in the testator's hand. The distinctive feature of a holographic will is less that it is handwritten by the testator and often that it need not be witnessed.
A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt.
In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate.
Types of wills generally include:
nuncupative (non-culpatory) - oral or dictated; often limited to sailors or military personnel
holographic- written in the hand of the testator; in many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.
self-proved- in solemn form with affidavits of subscribing witnesses to avoid probate
notarial - will in public form and prepared by a civil-law notary
mystic- sealed until death
serviceman's will - will of person in active-duty military service and usually lacking certain formalities, particularly under English law
reciprocal/mirror/mutual/husband and wife wills - wills made by two or more parties (typically spouses) that make similar or identical provisions in favor of each other
unsolemn will - will in which the executor is unnamed
will in solemn form - signed by testator and witnesses
After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfy the legal requirements, and to appoint an executor.
In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit.
Often there is a time limit, usually 30 days, within which a will must be admitted to probate.
Only an original will can be admitted to probate in the vast majority of jurisdictions – 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 will can be shown to the court.
It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses. This is not a consideration under English law, which provides that all such expenses will fall on the estate in any case.
In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will] was opened for signature in Washington DC.
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 which ratified or acceded to the Convention.
These are known as "international wills."
Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or tearing the physical document itself, or by striking out the signature.
In most jurisdictions, partial revocation is allowed if only part of the text or a particular provision is crossed out. Other jurisdictions will either ignore the attempt or hold that the entire will was actually revoked.
A testator may also be able to revoke by the physical act of another (as would be necessary if he is physically incapacitated), if this is done in his presence and in the presence of witnesses.
Some jurisdictions may presume that a will has been destroyed if it had been last seen in the possession of the testator but is found mutilated or cannot be found after his or her death.
A will may also be revoked by the execution of a new will. Most wills contain stock language that expressly revokes any wills that came before them, however, because normally a court will still attempt to read the wills together to the extent they are consistent.
In some jurisdictions, the complete revocation of a will automatically revives the next most recent will, while others hold that revocation leaves the testator with no will so that his or her heirs will instead inherit by intestate succession.
In England and Wales, marriage will automatically revoke a will as it is presumed that upon marriage, a testator will want to review the will.
Divorce, conversely, will not revoke a will, but in many jurisdictions, will have the effect that the former spouse is treated as if they had died before the testator and so will not benefit.
Where a will has been accidentally destroyed, on evidence that this is the case, a copy will or draft will may be admitted to probate.
This topic is part of the Advance Care Planning domain of the
Comprehensive Geriatric Assessment
Advance Care Planning is one of 8 domains of the
Comprehensive Geriatric Assessment (CGA)
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Back To : Advance Care Planning
1. Pro-forma General Template
Several proforma templates are available for download on the internet.
Advantage : Free of charge
Easily customizable Word format
Disadvantage : These are generic, and do not necessarily apply to the specific circumstances of the testator.
2. Pro-forma Specific Template
Templates designed for specific circumstances are available for download from the internet.
Single People with No Children or who do not want to leave property to their Children.
Single People with Adult Children
Single People with Minor Children. Includes trust giving property to children at 18
Single People with Minor Children. Includes trust giving property to children at 21
Married People with No Children or who do not want to leave property to their Children, even if their Spouse dies first.
Married People with Adult Children
Married People with Minor Children. Includes trust giving property to children at 18
Married People with Minor Children. Includes trust giving property to children at 21
Advantage : Free of charge or at a discretionary fee
Easily customizable Word format
Disadvantage : These are not necessarily fully compliant with legal requirements in the country of residence of the testator.
3. Customisable Online Country Specific Wills
Several websites offer individually tailored wills, fully referenced and compliant with specific country legal requirements.
Advantage : Intuitive and simple to use process of preparation.
Disadvantage : Nominal fee
Document upgradable online, free of charge
view/access : England / Scotland / Wales / Northern Ireland
view/access : Republic of Ireland
4. Professional Services
Solicitors or similar legal and/or paralegal professionals will draw up a will on request.
Advantage : Customised and legally sound product and advice, covering even the most complex testator requirements.
Disadvantage : Professional fee.
Usually requires attendance at professional’s place of work.