In criminal law it is necessary that there should be an act of the will to commit a crime, for unless the act is willful it is no offence.It is the consent of the will which renders human actions commendable or culpable, and where there is no win there can be no transgression.
The defect or want of will may be classed as follows: 1. Natural, as that of infancy. 2. Accidental; namely, 1st. Dementia. 2d. Casualty or chance. 3d. Ignorance. 3. Civil; namely, 1st. Civil subjection. 2d. Compulsion. 3d. Necessity. 4th. Well-grounded fear.
The terms will and testament are synonymous, and they are used indifferently by common lawyers, or one for the other.
There are five essential requisites to make a good will.
The testator must be legally capable of making a will. Generally all persons who may make valid contracts can dispose of their property by will. See Parties to contracts. This act requires a power of the mind freely to dispose of property. Infants, because of their tender age, and married women, on account of the supposed influence and control of their husbands, have no capacity to make a will, with these exceptions, that infants at common law may dispose of their personal estate, the males when over fourteen years of age, and the females when over twelve; this rule in relation to infants is not uniform in the United States. Persons devoid of understanding, as idiots and lunatics, cannot make a will.The testator at the time of making his will must have animum test-andi, or a serious intention to make such will. If a man therefore jestingly or boastingly and not seriously, writes or says that such a person shall have his goods or be his executor, this is no will.
The mind of the testator in making his will must be free, and not moved by fear, fraud or flattery. In such cases the will is void or at least voidable.
There must be a person to take, capable of taking; for to render a devise or bequest valid there must be a donee in esse, or in rerum natura, and one that shall have capacity to take the thing given, when it is to vest, or the gift shall be void.
The will must be put in proper form., Wills are either written or nuncupative.
A will in writing must be, 1. Written on paper or parchment; it may be in any language, and in any character, provided it can be read or understood. 2. It must be signed by the testator or some person authorized by him; but a sealing has been held to be a sufficient signing. And it ought to be signed by the attesting witnesses. In some states three witnesses are required, who should sign the will as such at the request and in the presence of the testator and of each other. This formality should generally be pursued, as the testator may have lands in such states which would not pass without it. 3. It must be published, that is, the testator must do some act from which it can be concluded that he intended the instrument to operate as his will. 4. To make a good will of goods and chattels there must be an executor named in it, otherwise it will be a codocil only, and the party is said to die intestate; in such a case administration must be granted.
A nuncupative will or testament, is a verbal declaration by a testator of his will before a competent number of legal witnesses.Before the statute of frauds they were very common, but by that statute which has been substantially adopted in a number of the states, these wills were laid under many restrictions.
In New York nuncupative wills have been abolished, except made by a soldier while in actual military service, or by a mariner while at sea.It is a rule that the last will revokes all former wills. It follows then that a man cannot by any testamentary act impose upon himself the inability of making another inconsistent with and revoking the first will.
A will voluntarily and intentionally made by a competent testator, according to the form required by law, may be avoided, 1st. By revocation and 2d. By fraud.
Among the civilians they have two other kinds of wills, namely: the mystic, which is a will enveloped in a paper and sealed, and the witnesses attest that fact, the other is the olographic; which is wholly written by the testator himself.
A document under which a will maker (testator) states his or her intentions regarding: the persons (beneficiaries) who will receive the will maker's property, the person or entity (executor) who will carry out the will maker's wishes, and, if necessary, the person (guardian) who will care for the will maker's minor children; In general, any instrument, executed with the required formalities conferring no present rights but intended to take effect on the death of the maker, which contains his intention respecting the disposition of his property.