Definition
A will is a legal instrument by which a person (the testator) directs the disposition of their property after death. It has no legal effect during the testator's lifetime, takes effect only upon death, and may be revoked or altered by the testator at any time before death.
More precisely:
1. TESTAMENTARY INSTRUMENT. A will is a written declaration, executed with the formalities required by law, expressing the testator's intentions regarding the distribution of their estate. It may dispose of real property, personal property, or both. A will may also appoint an executor, name guardians for minor children, establish trusts, and express other testamentary wishes.
2. EXERCISE OF TESTAMENTARY POWER. In a broader sense, "will" refers to any testamentary act — the exercise of the legal power to direct the post-death distribution of one's property. This usage appears frequently in older statutes and treatises that treat "will" as encompassing both wills and codicils.
3. TENANT AT WILL. In property law, "at will" describes a tenancy with no fixed term, terminable by either party at any time. This usage is independent of the testamentary meaning and appears in the phrase "tenant at will."
Common Language
Modern common usage (Wiktionary): Wiktionary's primary definitions include the faculty of choosing or deciding; determination or wish; and, as an auxiliary verb, expressing futurity or intention.
Historical common usage (Webster's 1913): "The power of choosing; the faculty or endowment of the soul by which it is capable of choosing; the faculty or power of the mind by which we decide to do or not to do."
The gap between common and legal meaning is substantial and in one direction: common usage centers on volition, desire, and intention as a mental faculty. The legal instrument called a "will" borrows that root sense — it expresses the testator's wishes — but the word in legal usage refers to the document itself, not the mental state. A researcher encountering "will" in historical legal sources should read it as the instrument, not as an inquiry into the testator's state of mind, unless context clearly signals otherwise.
Common Confusion
WILL vs. TESTAMENT. Historically, these were distinct: a will disposed of real property, a testament disposed of personal property. The document combining both was called a "last will and testament." This distinction has collapsed in modern usage — both terms now refer to the same instrument — but the historical split matters for researchers reading older English and early American sources, where the two words were not interchangeable. Bouvier and Rapalje both flag this directly. In Roman civil law and continental jurisdictions, "testament" (testamentum) remained the controlling term; "will" as a testamentary instrument is primarily an English-law formulation.
WILL vs. CODICIL. A codicil is a supplement or amendment to an existing will, executed with the same formalities. It does not replace the will but modifies it. Older statutes frequently used "will" to encompass codicils; modern statutes typically name both separately.
Core Elements
For a will to be legally valid, most jurisdictions require:
1. TESTAMENTARY CAPACITY. The testator must be of legal age (typically 18, with exceptions for military personnel and married minors) and of sound mind — meaning they understand the nature of making a will, the extent of their property, the natural objects of their bounty, and how these elements relate.
2. TESTAMENTARY INTENT. The instrument must reflect a genuine intent to make a present testamentary disposition — that is, to direct what happens to property after death, not merely to express a wish or plan.
3. WRITING. Virtually all jurisdictions require a will to be in writing. Oral (nuncupative) wills are recognized only in narrow, typically emergency circumstances and are increasingly disfavored or abolished.
4. SIGNATURE. The testator must sign the will, or direct another to sign on their behalf in their presence.
5. ATTESTATION. Most jurisdictions require the signature to be witnessed by a specified number of witnesses (typically two) who are present at the time of signing and who are not beneficiaries under the will.
Recognized Forms
/SUBTYPES
HOLOGRAPHIC WILL. A will entirely handwritten and signed by the testator, without attesting witnesses. Recognized in roughly half of U.S. states and many civil-law jurisdictions; rejected in others.
NUNCUPATIVE WILL. An oral will, typically limited to personal property and permitted only under specific circumstances such as imminent death during military service. Disfavored and restricted in modern law.
STATUTORY WILL. A will prepared on a pre-printed statutory form authorized by the legislature. Available in a small number of states as a simplified option.
JOINT WILL. A single document executed by two testators (typically spouses) as the will of both. Raises significant complications on the death of the first testator regarding revocability.
MUTUAL WILLS. Separate wills by two persons containing reciprocal provisions, often accompanied by a contract not to revoke. Distinct from a joint will.
CODICIL. Technically a supplement to an existing will rather than a subtype, but treated as part of the will for most purposes and must be executed with the same formalities.
Why It Matters in Research
The historical will/testament distinction is the primary trap in pre-twentieth-century sources. A reader encountering a dispute over a "will" in an 1840 case may be reading about real property only, while a "testament" dispute in the same era concerned personal property. The merged "last will and testament" became the standard form as the distinction eroded, but statutes and cases lagged behind practice. Confirm which property type is at issue before assuming the terms are synonymous in older materials.
Formality requirements have changed substantially across time and jurisdiction. Attestation rules, witness disqualification for interested parties, and the treatment of holographic wills all shifted across the nineteenth and twentieth centuries. A will valid in one era or jurisdiction may have been void in another. Researchers tracing the validity of a particular instrument must anchor their analysis to the law in force at the time and place of execution.
The doctrine of dependent relative revocation, the rules governing incorporation by reference, and the treatment of lapsed legacies are recurring complications in will construction cases that generate their own bodies of case law. Researchers working in testamentary disputes should treat the will itself as the starting point, not the endpoint.
Bouvier's note that "will" as a testamentary term is confined to English law and its derivatives is a useful jurisdictional flag: researchers working in Louisiana, Quebec, or any civil-law-influenced system should expect the operative term to be "testament" and the governing rules to differ structurally.
Historical Dictionary Support
Black's (both editions) and Rapalje agree on the core definition: a will is the legal expression of a person's wishes as to property disposition after death, taking effect only at death and revocable until then. Black's cites the Georgia Code of 1882 and Swinburne's treatise on wills as authority — Swinburne's Treatise of Testaments and Last Wills (1590, various later editions) was a foundational English text and appears repeatedly in early American case law.
Rapalje adds the most historically useful gloss by explicitly noting the will/testament distinction and flagging that "will" originally signified a testamentary disposition of land specifically. This is a point Black's elides, which can mislead researchers reading older sources.
Bouvier situates "will" within comparative law, noting that the English-law concept of a will as distinct from a testament has no direct equivalent in Roman civil law. His entry is the most intellectually ambitious of the shelf sources on this point, though it was written in an era when the distinction still had practical force.
Anderson's entry is less useful for the testamentary meaning but contains the important cross-reference to "tenant at will," a reminder that the legal term "will" operates in property law outside the testamentary context entirely.
None of the historical sources engage meaningfully with holographic wills or the modern statutory will, both of which postdate or were marginal to these dictionaries' primary period.
Jurisdictional Note
Attestation requirements, the recognition of holographic wills, and the age of testamentary capacity vary by state and by country. Louisiana, as a civil-law jurisdiction, applies different structural rules to testamentary instruments. Researchers working across jurisdictions should not assume uniform formality requirements, and should note that choice-of-law rules for wills typically look to the law of the domicile of the testator at death for personal property, and the situs of real property for real estate.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Wills and Testamentary Succession; Testamentary Capacity; Intestacy and the Law of Descent