Wills & Testaments

Every will is completed by death.

Omne testamentum morte consummatum est.

Source: 3 Co. 29; Co. Litt. 232; 4 Inst. 279; Broom, Max. 555; Weisman, 103h

A will has no legal force until the testator dies — before death, it is merely an expression of intention, revocable at any moment.

In wills, the intention of the testator is more especially regarded.

In testamentis plenius testatoris intentionem scrutamur.

Source: 3 Bulst. 103; Broom, Max. 555; Jenk. Cent. 277; Co. Litt. 322; Weisman, 103e

The cardinal rule of will construction is to give effect to the testator's intent — technicalities of form yield to the substance of his wishes.

We interpret the charters and deeds of laymen benignly, on account of their simplicity.

Benigne interpretamur chartas propter simplicitatem laicorum.

Source: Jenk. Cent. 81; Dig. 50.17.12; Broom, Max. 437, 568

Instruments drafted by laymen — deeds, charters, wills, and other writings — are construed liberally, because those unskilled in legal language should not be defeated by technical deficiency when their intent is discernible. This rule applies with special force to wills, where the testator can no longer clarify his meaning.

Where two conflicting clauses are found in a will, the last shall stand.

Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est.

Source: Co. Litt. 112b; Shep. Touch. 451; Broom, Max. 583; Wharton, Legal Maxims, Max. 25; Weisman, 103b; Weisman, 103q

The later clause prevails on the assumption that it represents the testator's final mind — the earlier, inconsistent provision is deemed revoked.

The will of a testator is ambulatory until the last moment of life — he may change it at any time.

Ambulatoria est voluntas defuncti usque ad vitae supremum exitum.

Source: Dig. 34.4.4; 4 Co. 61; 2 Bl. Comm. 502; Weisman, 103v

No will is final until the testator breathes his last — until that moment, he retains absolute power to alter, amend, or revoke it entirely.

The last will of a testator is to be thoroughly fulfilled according to his real intention.

Ultima voluntas testatoris est perimplenda secundum veram intentionem suam.

Source: Co. Litt. 322; Weisman, 103a

The executor's duty is to carry out the testator's wishes as the testator actually intended them — not as the executor might wish them to have been.