Wills


The purpose of a will is to permit the living to provide for those who come after them. By “willing” their estates, individuals can control the way their property is distributed after death. If an individual dies without a will and without heirs or relatives, however, the estate escheats to the state. A will is thus a way to keep the estate in the hands of family and/or loved ones, and out of the hands of the state.

Over the years, the law of wills developed into a very mechanical, strict set of rules generally uniform among states that safeguard against unscrupulous heirs who may forge or tamper with wills for financial gain. Virtually all states require the testator (the person making the will) to be over eighteen or “an adult,” the will must be typed or printed, and the only writing permitted on the document is the signature of the testator and witnesses.

Some noteworthy types of wills are nuncupative and holographic. Nuncupative wills are oral testaments with a very special, very limited purpose. Typically, the oral will has the power to dispose of only a limited amount of personal property. The original purpose of this type of will was to permit mortally injured soldiers or sailors to give gifts of personal property to their comrades-inarms. This provision is still reflected in many of the nuncupative statutes; it permits a dying individual to grant specific bequests to friends who may have cared for him during his last injury.

Holographic wills are testaments that are entirely handwritten instead of being typed or printed. They are generally not as formal as typed wills and are therefore more suspect by law, for a greedy heir may more easily be able to persuade the testator to hastily write out a will without the proper amount of counsel or reflection. It is for these reasons that holographic wills are looked upon with general disfavor, are subject to closer scrutiny, and are less commonly recognized than other wills.

Traditionally, the law of wills has been very slow to change but even it has begun to feel the impact of the “computer revolution.” Nevada, in 2001, added statutes that recognize “electronic wills,” apparently becoming the first state in the union to do so.