History of Wills
Historically, wills were often required to be hand-written by the testator, the person that the will is covering. The concept of a will has been around for a long time, and the intent remains that the creation of a will be as legally unemcumbering as possible. The development of Roman law was one of the first that most furthered the modern understanding of wills and led to the development of the law of estates in many European states.
In India, the will was unknown before English conquest. In Christian tradition, Eusebius and others have related of Noah's testament, made in writing, and witnessed under his seal, by which he disposed of the whole world. Additionally, wills are spoken of in the Old Testament (in Genesis 48), where Jacob bequeaths to his son Joseph, a portion of his inheritance, double to that of his brethren.
The Ancient Greek practice concerning wills was not the same in all places; some states permitted men to dispose of their estates, others wholly deprived them of that privilege. We are told by Plutarch, that Solon "is much commended for his law concerning wills; for before his time no man was allowed to make any, but all the wealth of deceased persons belonged to their families; but he permitted them to bestow it on whom they pleased, esteeming friendship a stronger tie than kindred, and affection than necessity, and thus put every man's estate in the disposal of the possessor; yet he allowed not all sorts of wills,..."
Wills were usually signed before several witnesses, who put seals to them for confirmation, then placed them in the hands of trustees, who were obliged to see them performed. At Athens, some of the magistrates were very often present at the making of wills.
The early Roman will differed from the modern will in important respects. It was effectual during the lifetime of the person who made it; it was made in public vivâ voce; all knew of the legator's intentions, the testator declaring his will in the presence of seven witnesses; and it could not be changed – these they called nuncupative testaments; but the danger of trusting the will of the dead to the memory of the living soon abolished these; and all testaments were ordered to be in writing.
The effect of Christianity upon the will was very marked. For instance, the duty of bequeathing to the Church was inculcated as early as Constantine, and heretics and monks were placed under a disability to make a will or take gifts left by will. A will was often deposited in a church. The Canon law follows the Roman law with a still greater leaning to the advantage of the Church. For the validity of a will it was generally necessary that it should be made in the presence of a priest and two witnesses, unless where it was made in pias causes. In England, the Church succeeded in holding in its own hands for centuries jurisdiction in testamentary matters.
Later in England, as the result of feudalism, real (land) and personal property became defined as two kinds of will, addressed separately. By the common law of England, there were limitations that a man could only dispose of his whole personal property if he left no wife or children; if he left either wife or children he could only dispose of one-half, and one-third if he left both wife and children. However, for real property, complete disposition with minimal limitations were allowed.
There were only minor changes in the treatment of wills in England until the Wills Act 1837 affected both the making and the interpretation of wills. Its main provisions were these:
All property, real and personal, and of whatever tenure, may be disposed of by will.
If customary freeholds or copyholds be devised, the will must be entered on the court rolls.
No will made by any person under the age of twenty-one is valid.
Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. It is usual for the testator and the witnesses to sign every sheet.
Gifts to a witness or the husband or wife of a witness are void.
A will is revoked by a later will or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances.
Alterations in a will must be executed and attested as a will.
A will speaks from the death of the testator, unless a contrary intention appear.
An unattested document may be, if properly identified, incorporated in a will.
Later, by the Larceny Act of 1861, stealing, injuring or concealing a will, whether of real or personal estate, was punishable with penal servitude for life. Forgery of a will (at one time a capital crime) rendered the offender liable to the same penalty. Fraudulent concealment of a will material to the title by a vendor or mortgagor of land or chattels is, by the Law of Property Amendment Act 1859, a misdemeanour punishable by fine or imprisonment or both.
It is often a surprise to those in modern England and United States that the concept of the freedom of disposition by will, familiar as it is in their Common Law systems, is by no means universal. In fact, complete freedom is the exception rather than the rule. Civil law systems often put some restrictions on the possibilities of disposal resulting in "forced heirship".