give the probate court jurisdiction in any particular case? What qualifications must an administrator have? What are the advantages of appointing a trust company administrator? 7. Is there a public administrator in your state? If not, what is done instead in cases where no relative is qualified to act? 3. What gives an administrator authority to act? How should he prove his authority to take the cash in a checking account? CHAPTER III MAKING A WILL § 16. Who Can Make a Will It is necessary to have a sound and disposing mind in order to make a valid will. It is presumed that any sane man or woman, not a minor, has capacity to make a will. A married woman has the right to make a will, but in some states she must recognize her husband's right of curtesy, i.e., his right to a life estate in her land if a child has been born. In like manner, a married man is limited in making a will by his wife's right of dower in any real estate he may own. In many states one can make a will of personalty at a younger age than he can a will of realty. In New York a boy eighteen years of age may make a will of personalty, and a girl sixteen years old may do the same. This does not seem sensible or logical, but it is law. In some few other states minors are allowed to make wills. A person, by consulting the statutes in his own state, may ascertain exactly what powers in this respect are given to married women and children. The usual incapacities by reason of which wills may be set aside are insanity, feeble mindedness, drunkenness, fraud, and undue influence. An insane person may make a good will in a lucid interval. An insane person whose insanity does not affect his business judgment may make a valid will at any time. An insane delusion may obsess a person without in any way affecting his capacity to leave his property by will. A will has been admitted to probate despite the fact that the testator believed in witches and witchcraft and other absurd hallucinations, it appearing that her belief in these particulars did not affect her ability to dispose of her property by will. On the other hand, where a testator believed that his wife and children had conspired to send him to an insane asylum and that they had tried to poison him, his delusions were held to have influenced his will and probate was denied. To decide exactly how much judgment an insane person may possess on the occasion of his making a will is not easy, and legal expositions on the subject are too voluminous to be given here. The question of undue influence is likewise a difficult problem. The person who delays the settlement of his affairs until his last illness, when he is weak, in pain, and completely dependent on those around him, may easily execute a will that he would not consider making when in health. The mind works uncertainly then and it is easy to be unjust and resentful. It is also hard for a person weakened and under a strain to reason soundly or to resist artful importunity and subtle suggestion from those upon whom he is dependent. Where undue influence is suspected, however, it must be clearly proved before the court will set aside the will. Thus, after death a will once made remains and cannot be changed. It is not invalid because it is prejudiced, unjust, harsh, and petty. The law never sets a will aside for such reasons. "The evil that men do lives after them." Notes: 1. Make your will when you are in health and able to 2. Never make a will when indignant because of some § 17. Why a Will Should Be Made If a man dies intestate, that is, without leaving an effective will, the laws of his state prescribe how his property shall be apportioned among those whom he leaves behind. The law necessarily has to work by general rules. Many men die leaving wives and minor children. The aim of those framing laws is to do what seems best for the general average of such cases. It would seem, though, that an intelligent father knowing all the circumstances would in every such case be able to plan better than the law, which merely strives to do what is best for the average family. It is not difficult for any man to find out what disposition of his property the law of his state will make in case of his sudden death. The question for each man to consider is whether or not he can better the state's disposition of his goods. Here are some points worth careful consideration. 1. When a man makes a will, he should first take the business ability of his wife into consideration. Is she competent, as executor, to handle the estate properly, or would it be safer for all concerned to appoint some financial institution executor and trustee to pay the income over to her month by month? Has she already property in her own right? If she marries again, should the property be tied up for her sake or for the sake of the children? 2. How old are the children? How expensively are they to be educated? Would it be well for the mother to have the added authority that control of the finances imparts? Is it desirable that each child should have his or her share on coming of age? Should not the mother be made financially independent while she lives? 3. What is the amount of the estate? Is it in shape to be left without change? What changes might be made in view of the possibility of death? What income is it likely to yield in days to come? Can the family continue to live as at present? Can they occupy their present home? Must any business now yielding income be wound up or sold out? In each individual case these questions could be expanded. A prudent man having in view the uncertainty of human life will look ahead, and as far as possible devise a will simplifying affairs for those he leaves behind. When a family is broken up by the death of its head, it is sure to be difficult for unaccustomed hands to take hold of tangled and complicated business matters, and, as far as a well-considered will can make things easier, it should be carefully worked out and executed. Further, we can see but a little way into the future; a prudent man will therefore execute a new will whenever important changes come in his circumstances and in the situation of those about him. Deaths, business changes, the birth and development of children, all these may necessitate change after change in one's will. A will is really easy to make and easy to alter, and it should be rewritten from time to time so as to provide for things both as they are and as they seem likely to be.1 Notes: I. In his last will a man should express the best part of himself. 2. A will should be planned to do the most good for those who are left. 3. A will gives a man his last chance to show his love and care for those dependent on him. § 18. Employing a Lawyer to Make a Will Drawing up wills is part of the work of a lawyer. Generally, every will should be prepared and executed by a competent lawyer. It should not be done hastily, and the details of execution must be done exactly as the law prescribes. A simple will, such as is given in § 19, whereby all of one's property is given to one person and that one person is made sole Α 1 See the will of Grover Cleveland (Form 3) for an example of a fair, kindly, well-thought-out will. |