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No Effect Until Death

Many documents define transactions that have testamentary look because the intended gift may be revocable by the donor and because enjoyment of the gift has been postponed until the death of the donor. Nevertheless, if, at the time of its execution, the document is legally effective to pass some immediate interest in property, no matter how slight, the transaction will not be classified as testamentary. In many cases, the donor is permitted to enjoy the benefits of the subject matter during his or her life while also avoiding the formal requirements of wills legislation. If the transaction is not testamentary, the property will not be included as part of the estate and will not be available to creditors. When, under some instrument that is not executed as a will, the right to enjoy property passes to other persons on the death of the person who owned the property, the validity of the instrument is likely to be called into question as an attempt to make a will and evade the consequences of a testamentary act.

The fact that a document describes itself as a will and is executed as a will does not make it testamentary. The whole document will be rejected from probate if all of its dispositions are operative before death. On the other hand, a part of a document which is testamentary, because it has no operation at all until death, may be severed and admitted to probate. The most definitive point for the classification is whether the document depends upon the death of the donor for its effect. For the transaction to be testamentary, death must be more than incidental to the enjoyment of the property - it must be the event that gives rise to the right so that it can be said that there was no right to any extent vested in the beneficieries before death.