Also known as: testamentary instruments · testamentary disposition
Written by attorneys · grounded in primary & secondary sources — see below
A written document by which a person directs the disposition of property upon death. The document must satisfy formal execution requirements to be effective.
Colin signed a formal will in his dispatch office naming his daughter Maxwell as residuary beneficiary. An allocation sheet listing trucks and routes lay among the papers. One witness recalled the sheet directly under the will pages with Colin gesturing toward the stack, while the other recalled it untouched on the corner of the desk. The court must decide whether the sheet forms part of the testamentary instrument.
Isaac Boggs died leaving a survivor annuity under the Railroad Retirement Act. His sons claimed a share through their mother's testamentary instrument under state community property law. The Court held that federal law preempts any state rule allowing transfer of the annuity interest by that instrument.
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Eyerman's will directed that his house be razed after death. The court treated the direction as an invalid testamentary instrument because it imposed a restraint on alienation without a valid charitable purpose. The trust company refused to carry out the demolition.
Farkas executed declarations of trust naming Williams as beneficiary of shares but retained full control during life. The court examined whether the declarations operated as a testamentary instrument. It held the documents created a valid inter vivos trust rather than a will.
Members of the Oglala Sioux Tribe died owning fractional interests in allotted lands. Their heirs and devisees challenged a federal statute that prevented passage of those interests by testamentary instrument. The Court held the statute effected a taking without just compensation.
Gruen executed a letter purporting to give his son a remainder interest in a Klimt painting while retaining a life estate. The son never took possession before Gruen's death. The court determined whether the letter qualified as a valid inter vivos gift or functioned instead as a testamentary instrument.
A document must be in writing, signed by the testator or at the testator's direction, and witnessed by two individuals who either observed the signing or the testator's acknowledgment. These requirements appear in Uniform Probate Code provisions governing will execution.
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Specific devises of identified assets are subject to ademption by extinction when the asset is no longer in the estate at death. General or demonstrative devises are not. The Restatement classifies devises to determine which rule applies.
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A separate writing is integrated only if it was physically present at execution and the testator intended it to form part of the will. Conflicting witness testimony about placement and reference during signing determines whether integration occurs.
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The Railroad Retirement Act expressly supersedes state community property laws that would permit a nonemployee spouse to transfer an interest in an annuity by testamentary instrument. The federal formula for survivor benefits controls.
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…vivas gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will ( see, McCarthy v Pieret , 281 NY 407, 409; Gannon v McGuire , 160 NY 476, 481; Martin v Funk , 75 NY 134,…