Barrie Wills Estates Trusts Lawyers

Donative Intent of a Will

A will must express the testator's real donative intention. In some circumstances, a person may not intend what he or she has written and signed to be a will, even in cases where the document is expressed to be a will. He or she may not intend it to be more than either a guide for a will, or a statement imparting information about his or her future intentions regarding his or her will. In other situations, absent real undue influence, a person may make a "will" only to appease someone, not having any serious intention of conferring any benefit on that person. Extrinsic evidence is always admissible to show the existence of testamentary intent. Even if a document meets the formal requirements for proper execution, the court will not admit the document to probate if the required testamentary intent is absent. The will maker must dispose of the property clearly by the terms of the will itself. Usually instructions to a solicitor for a will, if properly executed, will be a good will. The court must be satisfied that such instructions were intended to have disposing effect in the absence of a formal instrument and not intended simply either as a guide to or statement of information for future will.

A will may be intended to have effect only on the occurrence of some contingency. Alternatively, a testator may intend a will to be effective only during the continuance of some temporary state of affairs. In either case, the will is said to be conditional, and probate will be refused if the conditional event has yet to occur or the temporary state of affairs has changed or passed. There may be cases in which the expressed conditions are not intended to prevent the will from being operative generally. On the other hand, in limited circumstances where there is ambiguity in the language of the will, a will may be shown to be conditional from the surrounding circumstances of its making without there being a condition expressed in the will itself. In either case, direct evidence of intention, such as subsequent declarations of the testator, as well as all other evidence of the surrounding circumstances, is admissible to construe the will.

A simple recital in a will of some period of danger, such as possible death in the course of hazardous journey, or during military service, may be ambiguous and make it uncertain that a will is conditional. Where the will refers to a danger, or period of danger, coincident with its making, the reference may merely signify the reason for making the will and may not amount to a condition. It also seems that the longer the will maker survives without having made another will, the greater the likelihood that the courts will probate the will. But if the reference is made to a period of time and not to one of danger, then likely the will will be classified as temporary or conditional. In the latter case there would appear to be no reason for referring to the particular period other than to limit the operation of the will. Moreover, the will is ineffective after the specified period of time has elapsed unless it has been republished either by re-execution or by codicil confirming the will.