Will

• Author: Jeffrey Lehman, Shirelle Phelps

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A document in which a person specifies the method to be applied in the management and distribution of his estate after his death.

A will is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. At COMMON LAW, an instrument disposing of PERSONAL PROPERTY was called a "testament," whereas a will disposed of real property. Over time the distinction has disappeared so that a will, sometimes called a "last will and testament," disposes of both real and personal property.

If a person does not leave a will, or the will is declared invalid, the person will have died intestate, resulting in the distribution of the estate according to the laws of DESCENT AND DISTRIBUTION of the state in which the person resided.

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Because of the importance of a will, the law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid if the testator made the will as the result of UNDUE INFLUENCE, FRAUD, or mistake.

A will serves a variety of important purposes. It enables a person to select his heirs rather than allowing the state laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes or with whom he is unacquainted. A will allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. A will safeguards a person's right to select an individual to serve as guardian to raise his young children in the event of his death.

Howard Hughes and the Mormon Will

When billionaire recluse Howard Hughes died in 1976, it appeared that he had not left a will. Attorneys and executives of Hughes's corporations began an intensive search to find a will, while speculation grew that Hughes might have left a holographic (handwritten) will. One attorney publicly stated that Hughes had asked him about the legality of a holographic will.

Soon after the attorney made the statement, a holographic will allegedly written by Hughes appeared on a desk in the Salt Lake City headquarters of the Church of Jesus Christ of Latter-day Saints, more commonly known as the MORMON CHURCH. After a preliminary review, a document examiner concluded that the will might have been written by Hughes. The Mormon Church then filed the will in the county court in Las Vegas, Nevada, where Hughes's estate was being settled.

The will, which became known as the Mormon Will, drew national attention for a provision that gave one-sixteenth of the estate, valued at $156 million, to Melvin Dummar, the owner of a small gas station in Willard, Utah. Dummar told reporters that in 1975 he had picked up a man who claimed to be Howard Hughes and had dropped him off in Las Vegas.

Though Dummar first said he had no prior knowledge of the will or how it appeared at the church headquarters, he later claimed that a man drove to his service station and gave him the will with instructions to deliver it to Salt Lake City. Dummar said he had destroyed the instructions.

Investigators discovered that Dummar had checked out a library copy of a book called The Hoax, which recounted the story of Clifford Irving's forgery of an "autobiography" of Hughes. The book contained examples of Hughes's handwriting. Document examiners demonstrated that Hughes's handwriting had changed before the time the Mormon Will supposedly was written. In addition, the examiners concluded that the will was a crude forgery. Nevertheless, it took a seven-month trial and millions of dollars from the Hughes estate to prove that the will was a fake. In the end, the court ruled that the will was a forgery.

No valid will was ever found. Dummar's story later became the subject of the 1980 motion picture Melvin and Howard.

FURTHER READINGS

Freese, Paul L. 1986. "Howard Hughes and Melvin Dummar: Forensic Science Fact Versus Film Fiction." Journal of Forensic Sciences 31 (January).

Marks, Marlene Adler. 1981. "Where There's a Will ? Rhoden Recoups after Howard Hughes Fiasco." National Law Journal (January 5).

The right to dispose of property by a will is controlled completely by statute. Since the 1970s, many states have adopted all or parts of the UNIFORM PROBATE CODE, which attempts to simplify the laws concerning wills and estates. When a person dies, the law of his domicile (permanent residence) will control the method of distribution of his personal property, such as money, stock, or automobiles. The real property, such as farm or vacant land, will pass to the intended heirs according to the law of the state in which the property is located. Though a testator

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may exercise much control over the distribution of property, state laws protect spouses and children by providing ways of guaranteeing that a spouse will receive a minimum amount of property, regardless of the provisions of the will.

Requirements of a Will

A valid will cannot exist unless three essential elements are present. First, there must be a competent testator. Second, the document purporting to be a will must meet the execution requirements of statutes, often called the Statute of Wills, designed to ensure that the document is not a fraud but is the honest expression of the testator's intention. Third, it must be clear that the testator intended the document to have the legal effect of a will.

If a will does not satisfy these requirements, any person who would have a financial interest in the estate under the laws of descent and distribution can start an action in the probate court to challenge the validity of...