The word 'will' either refers in a metaphysical sense to all that a person wishes to happen on their death, or much more commonly, it refers to the document or documents in which a person expresses their wishes on death. It is in this latter sense that the word 'will' is to be used. A person who makes a will is known as a testatorif he is male, or atestatrixif she is female. There are five essential characteristics of a will, which may be summarized as follows:
the wishes expressed are intendedto take effect on death;
the will only takes effect on death;
a will can only operate as a declaration of intention;
a will is ambulatory;
a will is always revocable.
These characteristics are now considered in more detail.
Law of succession – наследственное право
Relating to – относящийся к
A will – завещание
To refer to – относиться к
In a metaphysical sense – в метафизическом смысле
To express smb’s wish on death – выразить свою посмертную волю
In a latter sense – в последнем (из двух) случае
A testator – наследодатель
A testatrix – наследодательница
To intend – предполагать, подразумевать
To take effect – вступать в силу
Declaration of intention – заявление о намерениях
Ambulatory – нефиксированный
Revocable – могущий быть отмененным, аннулированным
1. What does the word «will» refer to?
2. What are the essential characteristics of a will?
3. How do you call a person, who makes a will?
The wishes expressed in a will are only intended to take effect on or after death
It is an essential characteristic of a will that the wishes expressed are intended to take effect on or after death. In practice it is not always easy to distinguish between a will and a lifetime (inter vivos) gift. Even if a document is described as being a will it does not follow that it is in fact a will. If the provisions of the document are to take effect some time before the death of the person drawing up the document, it is not a will. Nevertheless, if the document contains some provisions which are intended to operate on death, while others are intended to operate before death, it is possible for a court to sever the document and allow any provisions intended to operate only on death to be admitted to probate as a valid will .
Conversely, a document does not have to be described as a will to be a will. According to Milnes v. Fodent (1890),where an intention can be shown either in the document itself or in the surrounding circumstances, that the document was intended to take effect on death, it will be admitted to probate. For example, in Slinn v. Slinn (1890), the document was described as being a deed but in fact complied with the formalities set down for the creation of a valid will in the Wills Act 1837 . Despite being described as a deed, extrinsic evidence showed that the document was only intended to take effect on the death of the person who executed it. Consequently the document was admissible to probate as a valid will. Thus the difference between a will and an inter vivos gift lies in: the time the gift takes effect; and
the formalities which have to be complied with for the creation of the gift. If the gift is to take effect on death, the formalities of the Wills Act 18 37 as amended have to be satisfied, whereas a completely different set of rules, which depend on the type of property that is the subject matter of the gift, governinter vivos gifts.
To distinguish – отличать
Inter vivos gift – прижизненное дарение
Provisions of a document – положения документа
A person drawing up a document – лицо, составляющее документ
To sever – разделять на части общую собственность
To probate – утверждать (завещание)
Valid will – юридически действующее завещание
Conversely – наоборот
According to Milnesv. Fodent(1890) – В соответствии с делом Милнс против Фодент (1890)