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54-413: Florence Balcombe (17 July 1858 – 25 May 1937) was the wife and literary executor of Bram Stoker . She is remembered for her legal dispute with the makers of Nosferatu , an unauthorized film based on her husband's novel Dracula . The daughter of Lieutenant-Colonel James Balcombe of 1 Marino Crescent , Clontarf , and of Phillippa Anne Marshall, she was a celebrated beauty whose former suitor

108-405: A holographic will , made out entirely in the testator's own hand, or in some modern formulations, with material provisions in the testator's hand. The distinctive feature of a holographic will is less that it is handwritten by the testator, and often that it need not be witnessed. In Louisiana this type of testament is called an olographic testament. It must be entirely written, dated, and signed in

162-404: A lawyer, a will may come as part of an estate planning package that includes other instruments, such as a living trust . A will that is drafted by a lawyer should avoid possible technical mistakes that a layperson might make that could potentially invalidate part or all of a will. While wills prepared by a lawyer may seem similar to each other, lawyers can customize the language of wills to meet

216-525: A parent's will, except in Louisiana, where a minimum share is guaranteed to surviving children except in specifically enumerated circumstances. Many civil law countries follow a similar rule. In England and Wales from 1933 to 1975, a will could disinherit a spouse; however, since the Inheritance (Provision for Family and Dependants) Act 1975 such an attempt can be defeated by a court order if it leaves

270-573: A post he held for 27 years. Their only child was born on 31 December 1879 and christened Irving Noel Thornley Stoker. Florence Balcombe outlived her husband by 25 years and died in 1937 at the age of 78. She was cremated at Golders Green Crematorium , and her ashes scattered at the Gardens of Rest there. The original plan had been to keep her ashes and those of her husband together in a display urn. After Irving Noel Stoker's death in 1961, his ashes were added to those of his father's in that urn. Balcombe

324-400: A research library or archive) under a deceased author's will . The executor is responsible for entering into contracts with publishers, collecting royalties, maintaining copyrights, and (where appropriate) arranging for the deposit of letters. According to Wills, Administration and Taxation: a practical guide (1990, UK) "A will may appoint different executors to deal with different parts of

378-401: A revocation that was based on a mistake of law on the part of the testator as to the effect of the revocation. For example, if a testator mistakenly believes that an earlier will can be revived by the revocation of a later will, the court will ignore the later revocation if the later will comes closer to fulfilling the testator's intent than not having a will at all. The doctrine also applies when

432-476: A testator executes a second, or new will and revokes their old will under the (mistaken) belief that the new will would be valid. However, if for some reason the new will is not valid, a court may apply the doctrine to reinstate and probate the old will, if the court holds that the testator would prefer the old will to intestate succession. Before applying the doctrine, courts may require (with rare exceptions) that there have been an alternative plan of disposition of

486-501: A valid one, came out of an accident. On 8 June 1948 in Saskatchewan , Canada, a farmer named Cecil George Harris became trapped under his own tractor . Thinking he would not survive (though found alive later, he died of his injuries in hospital), Harris carved a will into the tractor's fender, which read: In case I die in this mess I leave all to the wife. Cecil Geo. Harris. The fender was probated and stood as his will. The fender

540-437: A will has been destroyed if it had been last seen in the possession of the testator but is found mutilated or cannot be found after their death. A will may also be revoked by the execution of a new will. Most wills contain stock language that expressly revokes any wills that came before them, because otherwise a court will normally still attempt to read the wills together to the extent they are consistent. In some jurisdictions,

594-497: Is Christopher Tolkien 's work on J. R. R. Tolkien 's papers. A notable example is the case of Franz Kafka , who left no will. His friend Max Brod assumed the function of literary executor, though most of the literary estate was legally owned by Marianne Steiner and Věra Saudková. Will and testament This is an accepted version of this page Sections Contest Property disposition Common types Other types Governing doctrines A will and testament

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648-635: Is Elisabeth Förster-Nietzsche for Friedrich Nietzsche , as she resorted to fraud to make her brother's Nachlass more compatible with Nazi ideology. An exceptionally productive example is that of Rudolf Steiner . Although he did not originally intend that the stenographs of his thousands of lectures be published, he relented and named his second wife, Marie Steiner-von Sivers , to direct his Nachlass , which has produced more than three hundred volumes since his death in 1925. Older examples of such appointments, such as Kenelm Digby for Ben Jonson , are essentially editorial rather than legal. A contemporary case

702-494: Is a legal document that expresses a person's ( testator ) wishes as to how their property ( estate ) is to be distributed after their death and as to which person ( executor ) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy . Though it has been thought a "will" historically applied only to real property, while "testament" applied only to personal property (thus giving rise to

756-418: Is allowed if only part of the text or a particular provision is crossed out. Other jurisdictions will either ignore the attempt or hold that the entire will was actually revoked. A testator may also be able to revoke by the physical act of another (as would be necessary if he or she is physically incapacitated), if this is done in their presence and in the presence of witnesses. Some jurisdictions may presume that

810-412: Is called a " life estate " and terminates immediately upon the surviving spouse's death. The historical and social policy purposes of such statutes are to assure that the surviving spouse receives a statutorily set minimum amount of property from the decedent. Historically, these statutes were enacted to prevent the deceased spouse from leaving the survivor destitute, thereby shifting the burden of care to

864-440: Is called upon to testify or sign a "proof of witness" affidavit. In some jurisdictions, however, statutes may provide requirements for a "self-proving" will (must be met during the execution of the will), in which case witness testimony may be forgone during probate. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. In some jurisdictions, only an original will may be admitted to probate—even

918-480: Is currently on display at the law library of the University of Saskatchewan College of Law . After the testator has died, an application for probate may be made in a court with probate jurisdiction to determine the validity of the will or wills that the testator may have created, i.e., which will satisfy the legal requirements, and to appoint an executor . In most cases, during probate, at least one witness

972-579: Is in modern England and the United States, both generally considered common law systems, is by no means universal. In fact, complete freedom is the exception rather than the rule. Civil law systems often put restrictions on the possibilities of disposal; see for example " Forced heirship ". LGBT advocates have pointed to the inheritance rights of spouses as desirable for same-sex couples as well, through same-sex marriage or civil unions . Opponents of such advocacy rebut this claim by pointing to

1026-570: Is made in contemplation of forthcoming marriage to a named person will override this. Divorce, conversely, will not revoke a will, but in many jurisdictions will have the effect that the former spouse is treated as if they had died before the testator and so will not benefit. Where a will has been accidentally destroyed, on evidence that this is the case, a copy will or draft will may be admitted to probate . Many jurisdictions exercise an equitable doctrine known as "dependent relative revocation" ("DRR"). Under this doctrine, courts may disregard

1080-456: Is remembered for her legal dispute with the makers of the 1922 German horror film Nosferatu , which was based without attribution or permission on Stoker's novel Dracula . She was unaware of the existence of Friedrich Wilhelm Murnau 's Nosferatu until she received an anonymous letter from Berlin . The document included the program of a lavish cinematic event held in 1922, complete with full orchestral accompaniment, that had taken place in

1134-671: The Thellusson v Woodford will case led to British legislation against the accumulation of money for later distribution and was fictionalized as Jarndyce and Jarndyce in Charles Dickens 's Bleak House . The Nobel Prizes were established by Alfred Nobel 's will. Charles Vance Millar 's will provoked the Great Stork Derby , as he successfully bequeathed the bulk of his estate to the Toronto -area woman who had

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1188-625: The Roman Empire under the name Augustus . Antony's officiating at the public reading of the will led to a riot and moved public opinion against Caesar's assassins. Octavian's illegal publication of Antony's sealed will was an important factor in removing his support within Rome, as it described his wish to be buried in Alexandria beside the Egyptian queen Cleopatra . In the modern era,

1242-613: The British Incorporated Society of Authors . The suit took some time to resolve; at one point, the German production company Prana Film declared bankruptcy to avoid paying for the adaptation. Finally, she won the case, with the final ruling in July 1925 stating that the negatives and all prints of the film should be handed over to her to be destroyed. Despite this ruling, prints of the film slowly began to resurface in

1296-657: The Convention. These are known as "international wills". It is in force in Australia, Belgium, Bosnia-Herzegovina, Canada (in 9 provinces, not Quebec), Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia. The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified. International wills are only valid where

1350-574: The Marble Garden at Berlin Zoological Garden . The film was described in the handbill as "freely adapted from Bram Stoker's Dracula ." ( Nosferatu screenwriter Henrik Galeen had changed the names of the main characters and made some liberal changes to certain key points. However, the resemblance to Stoker's novel was undeniable. Balcombe was struggling financially and, as Stoker's literary executor , had never given permission for

1404-468: The New York stage. The show ran for a year on Broadway and for two more years on tour, breaking all previous records for any show put on tour in the United States. However, Liveright failed to pay Florence all her entitlements for the show – he died shortly afterwards. Literary executor A literary executor is a person acting on behalf of beneficiaries (e.g. family members, a designated charity,

1458-478: The ability of same-sex couples to disperse their assets by will. Historically, however, it was observed that "[e]ven if a same-sex partner executes a will, there is risk that the survivor will face prejudice in court when disgruntled heirs challenge the will", with courts being more willing to strike down wills leaving property to a same-sex partner on such grounds as incapacity or undue influence . Types of wills generally include: Some jurisdictions recognize

1512-406: The adaptation, nor received payment for it. Her furious response to this copyright infringement was prompt and uncompromising; not only did she want the financial reparation she felt was due to the estate, she demanded that the negative and all prints of the film (which she would never actually see) be immediately destroyed. Balcombe launched a lawsuit in which she was represented by the lawyers of

1566-409: The author's choice during his or her lifetime. If a sympathetic and understanding friend is in the position of literary executor, there can be conflict: what is to be managed is not just a portfolio of intellectual property but a posthumous reputation. Wishes of the deceased author may have been clearly expressed but are not always respected. Family members often express strong feelings about privacy of

1620-406: The complete revocation of a will automatically revives the next-most recent will, while others hold that revocation leaves the testator with no will, so that their heirs will instead inherit by intestate succession . In England and Wales , marriage will automatically revoke a will, for it is presumed that upon marriage a testator will want to review the will. A statement in a will that it

1674-556: The convention applies. Although the U.S. has not ratified on behalf of any state, the Uniform law has been enacted in 23 states and the District of Columbia. For individuals who own assets in multiple countries and at least one of those countries are not a part of the Convention, it may be appropriate for the person to have multiple wills, one for each country. In some nations, multiple wills may be useful to reduce or avoid taxes upon

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1728-458: The date in the margin; DRR does not apply and Alice Johnson will take nothing). Similarly, if Tom crosses out that clause and writes in the margin "$ 5,000 to Betty Smith" without signing or dating the writing, the gift to Alice will be effectively revoked. In this case, it will not be restored under the doctrine of DRR because even though Tom was mistaken about the effectiveness of the gift to Betty, that mistake does not affect Tom's intent to revoke

1782-648: The dead. For example, biographical writing is likely to be of a quite different authority if it is carried out with access to private papers. The literary executor then becomes a gatekeeper. Examples of literary executors include Sir Edward Marsh for Rupert Brooke , Robert Baldwin Ross for Oscar Wilde , Robert Hayward Barlow for H. P. Lovecraft , Rush Rhees , G. H. von Wright and G. E. M. Anscombe for Ludwig Wittgenstein , Otto Nathan for Albert Einstein , Regine Olsen for Søren Kierkegaard and Paul Williams for Philip K. Dick . A particularly notorious example

1836-470: The deceased spouse's will. As a simple example, under Iowa law (see Code of Iowa Section 633.238 (2005) Archived 2018-06-27 at the Wayback Machine ), the deceased spouse leaves a will which expressly devises the marital home to someone other than the surviving spouse. The surviving spouse may elect, contrary to the intent of the will, to live in the home for the remainder of his/her lifetime. This

1890-446: The estate and its assets. Care must be taken to avoid accidental revocation of prior wills, avoid conflicts between the wills, and anticipate jurisdictional and choice of law issues that may arise during probate. Intentional physical destruction of a will by the testator will revoke it, through deliberately burning or tearing the physical document itself, or by striking out the signature . In most jurisdictions, partial revocation

1944-399: The estate. One example of this is the appointment of a literary executor to deal with literary effects [...]". Since the literary estate is a legacy to the author's heirs , the management of it in financial terms is a responsibility of trust. The position of literary executor extends beyond the monetary aspect, though: appointment to such a position, perhaps informally, is often a matter of

1998-409: The gift in favor of another person. For example, suppose Tom has a will that bequeaths $ 5,000 to his secretary, Alice Johnson. If Tom crosses out that clause and writes "$ 7,000 to Alice Johnson" in the margin, but does not sign or date the writing in the margin, most states would find that Tom had revoked the earlier provision, but had not effectively amended his will to add the second; however, under DRR

2052-437: The gift to Alice. Because the gift to Betty will be invalid for lack of proper execution, that $ 5,000 will go to Tom's residuary estate. Also referred to as "electing to take against the will". In the United States, many states have probate statutes that permit the surviving spouse of the decedent to choose to receive a particular share of deceased spouse's estate in lieu of receiving the specified share left to him or her under

2106-405: The greatest number of children in the ten years after his death. (The prize was divided among four women who had nine, with smaller payments made to women who had borne 10 children but lost some to miscarriage. Another woman who bore ten children was disqualified, for several were illegitimate.) The longest known legal will is that of Englishwoman Frederica Evelyn Stilwell Cook. Probated in 1925, it

2160-432: The handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. Any additions or corrections must also be entirely hand written to have effect. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman's will. A minority of jurisdictions even recognize

2214-412: The jurisdiction, but generally includes the following: A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. In the United States, children may be disinherited by

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2268-638: The late 1920s, with the first American screenings taking place in New York City and Detroit in 1929. Balcombe did grant the rights to the stage adaptation of Dracula to Hamilton Deane , who had been a neighbour of hers in Dublin. Deane's play, Dracula , premiered in Derby in 1924. In 1927 Horace Liveright bought the American dramatic rights from Florence and hired John L. Balderston to edit it for

2322-509: The needs of specific clients. In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will , was concluded in the context of UNIDROIT . The Convention provided for a universally recognised code of rules under which a will made anywhere, by any person of any nationality, would be valid and enforceable in every country that became a party to

2376-412: The net estate make it challenging for a deceased spouse to disinherit their surviving spouse. In antiquity , Julius Caesar 's will , which named his grand-nephew Octavian as his adopted son and heir, funded and legitimized Octavian's rise to political power in the late Republic ; it provided him the resources necessary to win the civil wars against the " Liberators " and Antony and to establish

2430-431: The popular title of the document as "last will and testament"), records show the terms have been used interchangeably. Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator. Throughout most of the world, the disposition of a dead person's estate has been a matter of social custom. According to Plutarch ,

2484-477: The property. That is, after revoking the prior will, the testator could have made an alternative plan of disposition. Such a plan would show that the testator intended the revocation to result in the property going elsewhere, rather than just being a revoked disposition. Secondly, courts require either that the testator have recited their mistake in the terms of the revoking instrument, or that the mistake be established by clear and convincing evidence. For example, when

2538-460: The revocation would be undone because Tom was acting under the mistaken belief that he could increase the gift to $ 7,000 by writing that in the margin. Therefore, Alice will get 5,000 dollars. However, the doctrine of relative revocation will not apply if the interlineation decreases the amount of the gift from the original provision (e.g., "$ 5,000 to Alice Johnson" is crossed out and replaced with "$ 3,000 to Alice Johnson" without Testator's signature or

2592-608: The social welfare system. In New York, a surviving spouse is entitled to one-third of her deceased spouse's estate. The decedent's debts, administrative expenses and reasonable funeral expenses are paid prior to the calculation of the spousal elective share. The elective share is calculated through the "net estate". The net estate is inclusive of property that passed by the laws of intestacy, testamentary property, and testamentary substitutes, as enumerated in EPTL 5-1.1-A. New York's classification of testamentary substitutes that are included in

2646-468: The surviving spouse (or other entitled dependent) without "reasonable financial provision". There is no legal requirement that a will be drawn up by a lawyer, and some people may resist hiring a lawyer to draft a will. People may draft a will with the assistance of a lawyer, use a software product or will form, or write their wishes entirely on their own. Some lawyers offer educational classes for people who want to write their own will. When obtained from

2700-404: The testator made the original revocation, he must have erroneously noted that he was revoking the gift "because the intended recipient has died" or "because I will enact a new will tomorrow". DRR may be applied to restore a gift erroneously struck from a will if the intent of the testator was to enlarge that gift, but will not apply to restore such a gift if the intent of the testator was to revoke

2754-414: The validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used. Any person over the age of majority and having " testamentary capacity " (i.e., generally, being of sound mind ) can make a will, with or without the aid of a lawyer. Required content varies, depending on

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2808-491: The written will was invented by Solon . Originally, it was a device intended solely for men who died without an heir . The English phrase "will and testament" is derived from a period in English law when Old English and Law French were used side by side for maximum clarity. Other such legal doublets include " breaking and entering " and "peace and quiet". The concept of the freedom of disposition by will, familiar as it

2862-588: Was Oscar Wilde . She married Stoker in Dublin in 1878. He had known Wilde from their student days, and had proposed Wilde for membership of the university's Philosophical Society while he was president. Wilde was upset at Florence's decision, but Stoker later resumed the acquaintanceship and after Wilde's fall visited him on the Continent. The Stokers moved to London, where he became acting-manager and then business manager of Henry Irving 's Lyceum Theatre, London ,

2916-515: Was 1,066 pages, and had to be bound in four volumes; her estate was worth $ 102,000. The shortest known legal wills are those of Bimla Rishi of Delhi , India (four characters in Hindi meaning "all to son") and Karl Tausch of Hesse , Germany, ("Alles meiner Frau", meaning "all to wife"). The shortest will is of Shripad Krishnarao Vaidya of Nagpur, Maharashtra, consisting of five letters ("HEIR'S"). An unusual holographic will, accepted into probate as

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