Freedom of disposition

The conception of freedom of disposition by will, familiar as it is in modern England and the United States, both generally considered 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.

Advocates for gays and lesbians have pointed to the inheritance rights of spouses as desirable for same-sex couples as well, through same-sex marriage or civil unions. Historically, courts have been more willing to strike down wills leaving property to a same-sex partner for reasons such as incapacity or undue influence.

Legal requirements for the creation of a will

Any person over the age of 18 can draft his own will without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but every will must contain the following:

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 must declare that he revokes all previously-made wills and codicils. Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.

The testator must demonstrate that he has the capacity to dispose of his property, 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).

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.

After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will, i.e., whether it satisfied the legal requirements, and to appoint an executor. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.

Although there is no legal requirement that a will be drawn up by a lawyer, there are many pitfalls into which home-made wills may fall, and it is highly desirable that any will is the subject of legal advice before drafting or execution. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is no room for mistake.

A very 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 states recognize a holographic will, made out entirely in the testator's own hand. A minority of states even recognize the validity of nuncupative (oral) wills. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service.

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. Under laws of certain states of the United States of America, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. In England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them in the court's discretion.

It is not only a good idea, but essential that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands.

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