Introduction

A will is arguably the most important and personal legal document an individual ever executes.
For a testator, contemplating the creation and execution of a will is the contemplation of the
testator's own death. The resulting document memorializes the individual's personal wishes and
hopes for individuals and entities that are important to the individual. The document addresses
the individual's property, which many individuals view as an extension of themselves.'

Generally it is the attorneys who draft the will according to standards of the legal language
which leads to the absence of the individual's voice-or worse, the assumption of a "false" voice-
diminishes the estate planning experience from the individual's perspective and results in a flat
document that may not effectively convey the individual's wishes in a manner that is absorbable
by the individual's family and beneficiaries. As a result, a will is "more likely to be the subject
of litigation than any other legal instrument."1

A will is the unilateral disposition of one's property, in whole or in part, that takes effect on the
individual's death. It is generally revocable, and it is generally written.' Moreover, in a will, an
individual can also nominate executors, trustees of testamentary trusts, and guardians for minor
children.'

Originating in oral traditions, wills have become entrapped in a dizzy maze of formalities.'Even
today, at the most basic level, the required formalities are (1) a writing,12 (2) the testator's
signature, and (3) attestation by at least two competent witnesses.

Although more Indians have a valid will than in previous generations, most individuals still die
without a valid will.1 6 Reasons for not executing a will include failure to understand the
significance of the cost associated with a will-both financial and emotional. In the event that
an individual fails to execute a valid will, fails to execute a valid will that completely disposes
of his or her property, or fails to have valid will substitutes, the property passes via the state
statute.'

1
Gerry W. Beyer & Claire G. Hargrove, Digital Wills: Has the Time Come for
Wills To Join the Digital Revolution?, 33 OHIO N.U. L. REV. 865, 866 (2007).
Voice

Applicability of Voice to Wills Voice is an especially apt concept to apply to wills. The history
of wills stretches back to prehistory where the tradition of wills began as an oral tradition, and
the wills were literally in the testator's voice.56 Anglo-Saxon wills, for example, were oral
wills.57 Indeed, the old English word of will, "cwide," also means "word" and "saying."5 8 If
an individual died without a will, or as a "cwide-leas," the individual was not only intestate,
but also without speech.59 Accordingly, the will was a voice from beyond the grave. A Will
becomes enforceable only after the death of the testator. It gives absolutely no rights to the
legatee (the person who inherits) until the death of the testator . It has no effect during the
lifetime of the testator.

Types of wills

Nuncupative Wills

A nuncupative will is literally in the individual's voice. A nuncupative will, also called an oral
will, is a will that is orally declared in front of witnesses.228 Although nuncupative wills can
be traced to the origin of wills, the use of nuncupative wills today is limited.

Ethical Wills

Rooted in biblical tradition, an ethical will is a nonbinding document that an individual writes
to his or her loved ones.230 Not in fact a will at all, ethical wills are a letter that is written bythe
individual Put simply, "[1]egal wills bequeath valuables, while ethical wills bequeath values. 2
Although each ethical will is unique, typically the author includes expressions of love,
highlights personal values, family stories, lessons learned, and blessings.2 ethical wills provide
an opportunity for the individual to pass on his or her values, in addition to his or her valuables.
To that end, some individuals refer to these documents as "a personal legacy statement,"237 "a
legacy letter, 238 Ualegacy, "239 a "family philosophy.

Holographic Wills

A holographic will is a will that is handwritten by the testator and is not witnessed.2 4 8 This
long-standing civil law implant seems to be the best opportunity for the will to incorporate the
individual testator's voice because the holographic will is literally handwritten by the

2
BAINES, supra note 230, at 14; see also Keeva, supra note 164; UNIV. OF KY.
COLL. OF AGRIC., ETHICAL WILLS-PASSING ON VALUES IMPORTANT TO YOU 1 (1996),
available at http://www.ca.uky.edu/HES/fcs/FACTSHTSFAM-GW.107.pdf
individual.2 49 However, holographic wills can be problematic and may suffer from both a
surplus and deficient voice.250 In terms of legal effectiveness, laypersons may neglect to
include critical components of a will, such as disposing of the residue and nominating an
executor.2 5 ' Holographic wills may inadvertently conflict or revoke a prior testamentary
instrument.

Video Wills

In this digital age, the will, a written document with signatures, seems anachronistic.2 " Further,
an examination of the voice appears to support the use of video wills.2 64 Video wills resemble
oral wills where the "document" was literally in the individual's speaking voice.26 5 Video
wills raise the following concerns: (1) the testator's rambling may create confusion as to the
dispositions and (2) the testator's overly scripted speech may create confusion as to the
dispositions. For those reasons, video wills invite claims of incapacity.
Transfer And Decedent’s Estate

a)Probate v. Nonprobate

i)Probate - property that passes under the decedent's will or by intestacy(1)Distribution of

probate assets under a will or intestacy may require a court proceeding involving probate of a
will or a finding of intestacy followed by appointment of a personal representative tosettle the
probate estate.

ii)Nonprobate - property passing under an instrument other than a will(1)Nonprobate property

includes the following:

(a)Joint Tenancy property - decedent's interests vanishes at death; survivor has the whole.

(b)Life Insurance - proceeds on decedent's life paid to beneficiary named in policy.(c)Contracts

with payable-on-death provisions - Contract can be with employer, bank, etc., todistribute
property to name beneficiary upon death (ex: pension plans)

(d)Interests in Trust - trustee holds the property for the benefit of the named beneficiaries,
thendistributed per terms of trust.(2)No court proceedings – distribution determined by the
nonprobate document

b)Terminology

i)"go through probate" - to have the estate administered through probate courts

ii)Proper to use the word "will" to refer to an instrument disposing of both real and personal
property

iii)A person dying testate devises real property to devisees; bequeaths personal property to
legatees. "I give" effectively does the job in all circumstances

iv)Real property descends to heirs; personal property is distributed to next-of-kin.

c)Administration of Probate Estate

i)Personal Representative– appointment of personal rep necessary to oversee winding of

decedent’saffairs. Appointed by, under control of, and accountable to probate court.

(1) Executor- If the will names the person who is to execute the will & administer probate
estate,the personal rep is called an executor
Mental Capacity

a)The Test of Mental Capacity To be competent to make a will, the testator must be an
adult (18+yrs) and must be “of sound mind.”

i)Four Part Test for determining “of sound mind:”

(1)The testator must be capable of knowing and understanding in a general way:(a)the nature
and extent of his property,

•know in a general sense what you own; not necessary to know the specifics about
your property(b)the natural objects of his bounty,

•a sense of who should take(c)the disposition that he is making of that property; and

•you have to know what exactly you’re doing with the will(d)must also be capable of relating
these elements to one another and forming an orderly desireregarding the disposition of the
property.

•Have a clear understanding of what you’re engaging in when you create a willii)Note: The
test is one of

Capability , not of actual knowledge. If test was of actual knowledge, areasonable mistake
about whether one of your children was alive would make you mentallyincompetent since you
wouldn’t know the natural objects of your bounty (family).

COMPETENCY OF

WITNESSES

I) THE QUINTESSENTIAl FUNCTION OFA

SUBSCRIBINGWITNESSISTOPROTECTTHETESTATOR FROMFRAUDOR
UNDUEINFLUENCEATTHEMOMENTOFEXECUTION.
THEREFORE,WITNESSESMUST BE DISINTERESTED SO THAT THE
TESTATOR ’S BEST INTERESTS ARE LOOKED AFTER . THIS FUNCTION
ISPERFORMEDWHENTHEWILLISEXECUTED(NOT AFTER ).
 REVOCATION
Bars to Succession

1.Homicide: a person who feloniously and intentionally kills decedent is not entitled to any
benefit from his estate by will, trust, intestacy, life insurance, joint tenancy, etc.

2.Elder Abuse: a person who is found liable by clear and convincing evidence of abuse will be
treated as s/he predeceased decedent. includes physical abuse, neglect or fiduciary abuse.

3.No contest clause: will be enforced unless &, with reasonable cause, brings contest on
grounds of forgery, revocation or invalid transfer to person who drafted instrument.

pretermitted spouse

: a will executed prior to marriage, which omits the surviving spouse is revoked as to that
spouse, and she/he will receive her instate share of assets unless: (1) omission was intentional
as shown in will, (2) D provided for spouse by other transfer, or (3) spouse made valid
agreement waiving right to share in D’s estate.

2.Pretermitted child

: a will executed prior to birth or adoption of a child which omits that child is revoked as to
that child, and she/he will receiver her instate share of assets. unless (1) omission was
intentional as shown in will, (2) D provided for child by other transfer, or (3) D evidenced plan
that child’s other parent would take financial care of all the couple’s children.

rule of lapse

: if the beneficiary does not survive T, benefciaries’ gift lapses, or fails, unless T expresses a
contrary intent in the will. Passes by residual: if none by intestacy.

Partial Restraints on Marriage Permissible-Shapira , Union National Bank, 39ohio

Misc.28,315N.E.2d8251974).

Facts. The will of the decedent, avidShapira, .D., bequeathed portion of the residue of his
estate to his son, Daniel Jacob Shapira (P),provided that he s married to a Jewish girl, both of
who’se parents arc Jewish, at the time of the testator's death. after seven year from the testator's
death, P s unmardedor married to a non-Jewish girl, then his share should go to the State of
Israel. P, who is 2lyears old and unmarried, brings a petition to the Court arguing that his father
put invalid conditions on him which are unconstitutional.
Court held that the restrictions were not invalid since it did not pose any restrictions on the
right of son to marry anyone but rather put condition in inheritance. Had it been a complete
restraint, the condition would be held void.
 Conclusion
Wills are one of the oldest forms of legal documents. At the same time, the will is arguably the
most important and personal legal document an individual ever executes. The will is the
culmination of the estate planning process where an individual contemplates his or her death
and assess his or her life, including the evaluation of relationships and assets. The will becomes
the last words spoken by the testator. Yet, the typical will reflects little, if any, of the individual
testator's voice. The draftsperson can craft a persona that conveys a sense of the testator's
personal voice while moderating that voice to ensure that the document is substantively
accurate and operative. The crafting of a persona maximizes the estate planning personal
experience for the individual testator and maximizes the function of the document to express
the individual testator's wishes. Not only might voice defuse the likelihood of litigation, it helps
further the goals of estate planning by conveying an individual's financial and personal legacy.