WILL

Will is a capacity (or action or product) whereby a person is psychically attracted to some object that is apprehended as good, or is psychically repelled by some object apprehended as evil. Willing is usually (but not always) distinguished from knowing, in that willing involves some sort of affective approach to what is cognitively present to consciousness. Psychic activities such as loving, intending, desiring, consenting, choosing, using, enjoying (and their contraries) are considered as examples of willing. Freedom, in the sense of the capacity for self-determination (the ability to "make up one's mind"), is associated with the meaning of will. Writers in the Thomistic tradition regard will (Lat., voluntas ) as the potency, function, or resultant of rational appetite (see faculties of the soul). On the other hand, other Catholic writers follow the usage of St. Augustine, in which human will means the whole soul as active in any manner; this usage may still be found in prayers, works of piety, and spiritual exercises. In either case, will is an important constituent of personality, for it represents the seat of an intelligent commitment to some value or of a rejection of some disvalue. God, angels, and human persons are possessed of will in this broad sense; thus the term should not be limited to merely human activities.

This article presents a systematic analysis of the concept of will, with an accent on Catholic thought, and then furnishes a historical survey of other theories of willing.

Will and Willing: Systematic Analysis

The main points treated in this analysis are the existence of the will in man, the nature of the human will, man's various acts of willing, and the role of habituation in the training of the will.

Existence of the Will. That man is capable of willing may be shown from a study of one's personal experience and from observation of the behavior of other persons. In one's own consciousness, there are moments of decision, of commitment to some ideal or principle, of conscious choosing to do or not to do some action. These critical activities can be explained only by concluding that man is endowed with a special ability, a power, to make such decisions and choices. Similarly, one sees others in the course of deliberating and coming to decisions, and then acting as a result of such volitional processes. It is not that anyone directly observes the inner working of another's will: this he cannot do. Rather, the simplest and most reasonable explanation of certain affective and appetitive features of human conduct lies in granting that each person has his own power of willing.

Actually, there is not a great deal of opposition to the contention that each man is able to will for himself. Many would deny the existence of a special "faculty" of will, if faculty were taken to mean an agency separate from the basic substance of man. Thus, the British empirical philosophers from Hobbes to the present tend to interpret human will as a function of the person rather than as a distinct power. The suggestion that will is a rational appetite is frequently criticized by those who see no difference between sense perception and reasoning (see sensism). Much of this disagreement stems from terminological misunderstandings that arise between members of different schools of philosophy. Most philosophers think that the individual man is able, at least in part, to determine his actions under his own control. This capacity for self-determination is generally admitted to be will. Yet there are many variations in the detailed philosophical theories of willing (see below).

Nature of the Will. As rational appetite, man's will is a tendential power capable of inclining toward any object that is intellectually presented as a good. The nature of the will, then, is discoverable from a study of the kind of volitional actions that are performed by man. Clearly, the will is not a bodily power, like the ability to move the body in walking or talking, for willing is directed to an intelligible object that is known on a level above that of bodily activity. The will is an incorporeal power. Since it is quite real and not a mere abstraction, this immaterial power may also be called spiritual.

Some thinkers have regarded man's will as a power superior to his intellect. In the late 13th century, for instance, peter john olivi wrote that the very possibility of understanding is due to a will act (see Bourke, 83–84). This exaltation of will over intellect is psychological voluntarism. The contrary view would be intellectualism. A reasonable position maintains that intellect and will are equally important in the psychological constitution of man.

Human freedom—the capacity for self-determination, for personally controlling some of one's actions and omissions—is intimately associated with the functioning of the will. Here again, one may argue from his personal experience of desiring, choosing, and refraining from possible actions, to freedom's being evident in some of man's volitional functions. People who deny that man is free usually do so on two bases. (1) Some philosophers (Thomas hobbes is the best example) have thought that man is nothing but a body and that he has no spiritual powers or activities. If this were true, then all human actions would be mechanically produced and man would not be free. However, Hobbes was wrong; man is able to perform immaterial actions (understanding and willing), and freedom is a prime characteristic of such functions (see soul, human; spirit). The very fact that men are held responsible, morally and at law, for certain of their actions, is enough to indicate how eccentric it is to deny personal freedom. (2) Other philosophers have interpreted "free" to mean completely uncaused; as a consequence they have asserted that no free activity is possible to man. This is not what free means. The acts of man that are free are not caused by agencies external to man; they are caused by agencies within man. In other words, man's capacity for self-determination is the root of his personal freedom. (see free will.)

Acts of the Will. Every positive willing is a tending toward a good. Negative volition is a tending away from some object that is apprehended as evil. The most basic act of will is loving; volitional love means affective approval of an intelligible good. All other positive acts of will may be regarded as variants of the fundamental action of loving. Similarly, negative acts of volition are variants of hating. (see love.)

Where the good that is cognitively presented to the will is complete and unmixed with evil, the will is powerless to withhold its love of such an object (see good, the supreme). So, the volitional response to the universal good (for example, man's ultimate happiness, or God as the perfect good) is called a natural and necessary volition. It is an act of will as nature. However, where the object is presented as a particular good of limited appeal, the volitional response is called deliberate volition and it is free.

In traditional Catholic psychology, volitional acts are divided also into elicited and commanded (or imperated) actions. The latter are activities performed in some other power of man under the direction or use of will: thus, to walk or talk in a self-controlled manner is to perform a commanded act. Elicited acts of will are functions of the will itself as a power, e.g., wishing, intending, consenting (St. Thomas Aquinas, Summa theologiae, 1a2ae, 1.1 ad 2; 6 prol. ). St. Thomas described six sorts of elicited action of human will (ibid., 1a2ae, 8–17), and cajetan, in his commentary, systematized this teaching in the following outline relating the volitional acts to the respective intellectual activities (see human act).

Two points should be emphasized concerning this:(1) The analysis is not to be understood as if will and intellect were two separate agents: man is the agent who wills and understands; (2) The order in which these acts are listed is not necessarily the order of their occurrence in time.

• 1. In relation to an end.
• a. Wishing (velle ): a will act of simple affective approval of something apprehended as a good in itself; the parallel intellectual act is the apprehension of an end.
• b. Intending (intendere ): a will act of inclining toward the attainment of an end; associated with the intellectual judgment of the attainability of the end.
• 2. In relation to means.
• a. Consenting (consentire ) to means: a will act of accepting a plural number of means as possible; associated with intellectual deliberation on the available means.
• b. Choosing (eligere ): a will act of selecting the one means to be used, or of deciding to act or not to act; associated with the intellectual act of preferential judgment.
• 3. In relation to execution.
• a. Using (uti ): a will act of applying other powers of the agent to their commanded actions; associated with the intellectual act of commanding.
• b. Enjoying (frui ): a will act of taking satisfaction in the end attained; associated with the intellectual judgment of the suitability of what is accomplished.

An important feature of will activity is motivation. There is a "reason why" (propter quod ) a person wills in one way rather than another: this is the motive for willing. A positive motive is the fact that some object is viewed by the agent as good. This "goodness" may be real or apparent; as long as it is apprehended as attractive it may motivate the will. On the other hand, an object regarded as evil motivates negative volitions: acts of dislike, refusal, and disagreement. A volitional motive does not move the agent from outside, but stimulates from within his own consciousness; thus motivation does not reduce freedom.

Habituation and Training of Will. Habit formation is possible in any psychic power whose activity is capable of being improved with use. Such a potency must be open to being actuated in several ways, and not wholly determined by its nature to but one way of operating. Although this is the case in regard to certain acts of human willing, it is not so in regard to other acts. Man's will is by nature wholly in favor, as it were, of the good that is loved, desired, chosen, for the sake of the possessor of the will. No habit can be formed, or is needed, to improve such self-directed volitions. It is not so natural to will the good for another person; effort and repeated practice are required to perform acts of altruistic volition. Volitional habits enabling one to seek the good for other persons are various modifications of the moral virtue of justice. Another area of volition that is open to improvement by habit formation is that in which one tries to love other persons because they are God's creatures. This is the domain of charity, a supernatural habit of the will. In its highest sense, hope may also be a volitional habit. Many Catholic moralists, using a broad Augustinian meaning of will, would say that all moral virtues are good habits in the will. Aquinas taught that the above-mentioned moral virtues are habits in the will as subject, whereas various kinds of temperance are in the concupiscible appetite as subject, habits related to fortitude are in the irascible appetite, and habits of prudence are in the practical intellect. Of course, Aquinas thought that the will is involved in the exercise of the acts of all the moral virtues. (see virtue; habit.)

As to the notion of "training" the will, this usually implies a dynamic power interpretation. As studied by Catholic psychologists such as J. Lindworsky, this popular view that one may increase the degree of strength of will power by certain exercises has not been confirmed. So-called strength of will is mostly a matter of attentiveness, of being able to maintain concentration on some objective that is regarded as desirable. Attention is more important than "strong" will. (see will power.)

Historical Survey of Theories of Will

The wide variety of theories dealing with the will precludes an exhaustive treatment. In what follows, the main lines of development in Western thought are sketched, with summary treatments of Greek, patristic, medieval, and modern contributions to this subject.

Greek Origins. Pre-Christian Greek philosophy did not stress the function of willing. In fact, it is difficult to identify the term that means, for Plato or Aristotle, what will does today. Plato divides man's soul into three parts: rational (τὸ λογιστικόν), desiderative (τὸ ἑπιθυμητικόν), and competitive (τὸ θ[symbol omitted]μοειδής); the second and third gave rise to appetitive function that only remotely resemble willing (Rep. 435E–442; Tim. 69B–72D). In the Phaedrus (246–248) these appetites are compared to two wild horses that may be regulated by reason. Aristotle's psychology has a general theory of human desire (ὄρεξις) and some discussion of rational choice (προίρεσις) and wishing (βούλησις). The treatment of these functions (Anim. 433a 10b–30) does not lead to the postulation of a power that would be equivalent to will (voluntas ) in the scholastic sense. Rational choice is hesitantly called (Eth. Nic. 1139b 3) intellective appetition or appetitive intellection. Aristotle does not clearly describe a power of will.

Among pre-Christian philosophers, the Stoics came closest to a concept of willing as distinctive of the person. Thus, Cicero says: "Wherefore, as soon as anything that has the appearance of good presents itself, nature incites us to endeavor to obtain it. Now, where the strong desire is consistent and founded on prudence, it is by the Stoics called βούλησις, and the name which we give it is will (voluntas )" [Tusc. disp. 4.6; tr. C. D. Yonge (London 1853) 403]. plotinus (3rd century a.d.) discusses some functions of willing under the term βούλησις, and also uses the word θέλησις, which is adopted by some of the Greek Fathers (Ennead. 6.8.1–21).

Patristic Teaching. With the Christian emphasis on the dignity of the human person and on the concept of personal salvation and moral responsibility stressed in the Bible and early Christian writings, more attention came to be directed to the will and its acts. The well-developed psychology of St. augustine distinguishes three main functions of the soul: knowing, remembering, and willing (Trin. 10.11.17). In this triadic view, will (voluntas ) means the whole soul as active (Retract. 1.15.3; De duab. anim. 11.15). The Augustinian will is not a faculty but the soul itself as loving: indeed, will is but love in its strongest form (Trin. 15.21.41). Nor are there powers of sensory appetition, distinct from will, for St. Augustine: cupiditas (sensual desire) and libido (lust) are simply perverse movements of will (Civ. 14.6–7). Man's will, while essentially free to turn toward the good or away from it, is not, by itself, able to accomplish man's salvation; for that, divine grace is required (Retract. 1.9.5). The Will of God, according to Augustine, is identical with God as supreme cause and ruler of all things (cf. Conf. 12.15.18).

St. john damascene (8th century) introduced into Christian psychology an analysis of volition that differs from Augustine's theory and leads to the notion of a faculty of appetition. The third part of Damascene's Source of Knowledge (Patrologia Graeca, ed. J. P. Migne, 94:944–945) describes man's power of will (θέλησις) as a natural and rational appetite whose act is willing (βούλησις) an end. Rational deliberation makes possible a judgment regarding means, from which the will makes its choice (προίρεσις). Thus are the seeds of Aristotelian and late Stoic (e.g., that of nemesius of emesa) appetitive and faculty theories combined in Damascene and transmitted to later scholasticism.

Medieval Theories. In the 12th century, St. bernard of clairvaux stressed will as the seat of spiritual love, and even knowledge, in the soul [De diligendo Deo, tr. T. Connolly, ed. A. C. Pegis, Wisdom of Catholicism (New York 1949) 230–268]. This emphasis continues in 13th-century Franciscan psychology (i.e., that of St. bon aventure, john of la rochelle, and Peter John Olivi) where the human will is not distinguished from the general power of the soul, which reaches its fulfillment in the love of God in heaven.

With the adoption of an Aristotelian psychology by St. albert the great and St. thomas aquinas, a theory of really distinct potencies of the soul was developed. It was not long before some of the views of Augustine and John Damascene were combined with this faculty psychology in such a way as to distinguish the two highest powers in man: intellect and will. The result was a new way of looking at the human will, viz, as the intellectual or rational appetite in man (see studies by Verbeke, Klubertanz, and Bourke).

Thomistic Teaching. Aquinas's explanation of human willing is central in his theory of human nature. He begins with a radical distinction between the generic functions of cognition and appetition (Summa theologiae, 1a, 80.1). To know is to take in and immanently react to information from the world of reality. To will is to incline toward, or away from, union with a known object. Cognition is ingoing; appetition is outgoing. Aquinas further distinguishes the cognition of individual aspects of bodily things (sensing) from the cognition of universal meanings. Two lower powers of sensory appetition (concupiscibility and irascibility) enable man to incline toward, or away from, sensory objects. These two sense appetites are powers that are really distinct from will. The intellectual appetite (will) is a third and higher appetitive power through which man inclines toward, or away from, universal aspects of things known as appealing or repulsive. Thus the Thomistic will is stimulated to its appetitive response through the intellectual presentation of some universal good or evil. (If one desires to eat an apple, simply because he likes the taste, then his appetitive response is not a will-act but a movement of the concupiscible appetite. If he also desires this apple because he thinks that its eating promotes good health, then his appetitive response to this universal good is an act of intellectual desire in his will.) Many of man's functions, according to Aquinas, are joint movements of sensory plus intellectual appetites.

As intellectual appetite, in the Thomistic theory, the will inclines without deliberation—an intellectual process of weighing the appeal of various apprehended goods—and so naturally, toward the good-in-general. Since such an object contains nothing repulsive, the will is naturally and wholly attracted to it (Summa theologiae, 1a, 82.1; De malo 6.1). Perfect happiness, for instance, cannot be volitionally rejected by man, although he may fail to will it by consciously rejecting all intellectual consideration of it. This first type of will movement is not free: it is a natural volition (voluntas ut natura ). Second, man may think over, take counsel with himself, and deliberate on, the respective values of several intellectually known goods. If he responds to a deliberated judgment in a movement of will—which he does not have to do, because goods that can be deliberated on must be limited in appeal—then his will act is free. This kind of volitional act is called a deliberated volition (voluntas deliberata ). It is most clearly exemplified in choices of means. Freedom of choice (liberum arbitrium ) is not a function of will alone, for Thomists, but is a joint activity pertaining formally to intellect, and materially or substantially to will (Summa theologiae, 1a, 83.1; De ver. 24.1–2). It is man who is free, not his will or his intellect as powers.

Later Scholastic Views. In the 14th century there was much diversity of teaching concerning will. Some Oxford theologians held that the will performs cognitive functions (see study by Michalski). John Duns Scotus reacted against certain features of Thomism that he regarded as intellectualistic; so, he stressed the point that nothing moves the will except will itself—God, of course, excepted (Op. Oxon. 2.24–25). While Scotus retained the distinction of natural and deliberated volition, he tended to identify will with an essentially free power [voluntas quae est potentia libera per essentiam—Ordinatio 1.17.1–2; ed. Balić, (Vatican City 1950) 5:169]. He also adopted the notion of indifference from Franciscan discussions (e.g., those of Olivi), and used it to define volitional freedom. Other features of Scotus's teaching on will are: treatment of volition under efficient rather than final causality; strong emphasis on terminology of elicited and imperated acts of will, because all moral activity (praxis ) is either immediately or mediately an action of will (Ordinatio, prol. 5.1; ed. Balić, 1:156). Much of later scholastic teaching on the human will fuses scotism with thomism.

william of ockham emphasized the essential freedom of will more than did Scotus. Ockham did not grant to the intellect any real influence on the will's activity: the human will is a wholly active power that is absolutely free [In 1 sent. 1.6 P-T (Lyons 1495)]. Ockham is very much interested in the Will of God, stressing the complete omnipotence of divine will [De sacramento altaris, ed. T. B. Birch (Burlington, Ia. 1930) 330]. Will is superior to understanding, both in man and in God (In 1 sent. 1.2 K).

There is considerable Ockhamist influence on the volitional theory of Francisco suÁrez (1548–1617), who was one of the most influential of the later schoolmen (De anima, 5; Disp. meta. 19). Final causality, for him, becomes a metaphor and volition is the work of an efficient power. The human will is completely and essentially free with the liberty of indifference (De concursu motione et auxilio Dei 1.8).

Modern Philosophy. In modern philosophy, dozens of different meanings have been given to will and volition. For purposes of convenience, these can be reduced to eight different views, according as will means (1) intellectual preference, (2) rational appetite, (3) the faculty of freedom, (4) dynamic power, (5) the seat of love, (6) popular conviction, (7) the source of law, and (8) basic reality. A brief explanation of each view follows.

Intellectual Preference. This view reduces volition to an almost purely cognitive function of judging. B. spinoza implies this when he says: "Only individual volitions exist, that is to say, this and that affirmation and this and that negation" (Ethica 1.49.2).

Rational Appetite. This is St. Thomas's view, as described above. G. W. leibniz is the modern thinker who is closest to this theory; he is very critical of Descartes's use of the liberty of indifference and of Spinoza's intellectualism.

Faculty of Freedom. This view is shared by many Catholic thinkers and is best represented in modern times by F. Suárez. It takes will as a power of self-determination whose every action is somewhat free. Perhaps maine de biran (a Catholic but not a scholastic philosopher) and later French "philosophers of the spirit" are the most prominent recent supporters of this view. Some existentialists (e.g., G. Marcel) share it.

Dynamic Power. Here will is considered as the efficient cause of activities of various sorts, either material or immaterial. Modern dynamic power theories take two forms: (1) Will power is regarded as physical energy, the capacity to move the human body (taught by Thomas Hobbes, in the 17th century, and by U.S. faculty psychologists such as Asa Burton and Jeremiah Day, in the 19th century); and (2) will power is mental energy, the capacity to generate ideas or new states of consciousness [see Josiah Royce, Conception of God (New York 1897) 187–192].

Seat of Love. According to this theory, loving is made the key act of personality, and will expresses itself in various forms of affection. Friedrich schlegel popularized this view in German romantic philosophy. Love is regarded as the highest integration of human personality and even as the bond of all that is good in reality. Much the same notion is found in F. W. J. schelling's works dealing with this subject.

Popular Conviction. This is a theory of volition as a group activity. Those with this view speak much of the "will of the people" or "general will." It was advocated by J. J. rousseau, who argued that the general will is an infallible arbiter of right and wrong. Modern democratic theory, with its reliance on popular elections, may owe something to this theory of will. Edmund burke strongly criticized this notion of will.

Source of Law. According to this interpretation, the most important product of willing is legislation. Immanuel kant identified his legislative will with practical reason and saw it as the source of moral law (see categorical imperative).

Basic Reality. In this view, all existing being is of the nature of will. This makes will a metaphysical principle. Arthur schopenhauer is the most famous metaphysical voluntarist (see pessimism).

See Also: appetite.

Bibliography: a. alexander, Theories of Will in the History of Philosophy (New York 1898). v. j. bourke, Will in Western Thought (New York 1964). r. p. sullivan, The Thomistic Concept of Natural Necessitation of the Human Will (River Forest, Ill. 1952). g. gustafson, The Theory of Natural Appetency in St. Thomas (Washington 1944). g. verbeke, "Le Développement de la vie volitive d'après s. Thomas," Revue philosophique de Louvain, 56 (1958) 5–34. f. crowe, "Complacency and Concern in the Thought of St. Thomas," Theological Studies, 20 (1959) 1–39, 198–230, 343–395. g. klubertanz, "The Root of Freedom in St. Thomas's Later Works," Gregorianum 42 (1961) 701–724. m. schmaus, Die psychologische Trinitätslehre des hl. Augustinus (Münster i.W. 1927). o. lottin, La Théorie du libre arbitre depuis S. Anselme jusqu'à S. Thomas d'Aquin (Louvain 1929). a. san cristÓbal-sebastiÀn, Controversias acerca de la voluntad desde 1270 a 1300 (Madrid 1958). k. michalski, "Le Problème de la volonté à Oxford et à Paris au XIV^e siècle," Studia Philosophica 2 (1937) 233–365. t. mullaney, Suarez on Human Freedom (Baltimore 1950). e. tegen, Moderne Willenstheorien, 2 v. (Uppsala 1924–28). j. donceel, "The Psychology of the Will," Mélanges Joseph Maréchal, 2 v. (Brussels 1950) 2:223–232. j. lindworsky, The Training of the Will, tr. a. steiner and e. a. fitzpatrick (Milwaukee 1955).

[v. j. bourke]

WILL

A document in which a person specifies the method to be applied in the management and distribution of his estate after his death.

A will is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. At common law, an instrument disposing of personal property was called a "testament," whereas a will disposed of real property. Over time the distinction has disappeared so that a will, sometimes called a "last will and testament," disposes of both real and personal property.

If a person does not leave a will, or the will is declared invalid, the person will have died intestate, resulting in the distribution of the estate according to the laws of descent and distribution of the state in which the person resided. Because of the importance of a will, the law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid if the testator made the will as the result of undue influence, fraud, or mistake.

A will serves a variety of important purposes. It enables a person to select his heirs rather than allowing the state laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes or with whom he is unacquainted. A will allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. A will safeguards a person's right to select an individual to serve as guardian to raise his young children in the event of his death.

Howard Hughes and the Mormon Will

When billionaire recluse Howard Hughes died in 1976, it appeared that he had not left a will. Attorneys and executives of Hughes's corporations began an intensive search to find a will, while speculation grew that Hughes might have left a holographic (handwritten) will. One attorney publicly stated that Hughes had asked him about the legality of a holographic will.

Soon after the attorney made the statement, a holographic will allegedly written by Hughes appeared on a desk in the Salt Lake City headquarters of the Church of Jesus Christ of Latter-day Saints, more commonly known as the mormon church. After a preliminary review, a document examiner concluded that the will might have been written by Hughes. The Mormon Church then filed the will in the county court in Las Vegas, Nevada, where Hughes's estate was being settled.

The will, which became known as the Mormon Will, drew national attention for a provision that gave one-sixteenth of the estate, valued at $156 million, to Melvin Dummar, the owner of a small gas station in Willard, Utah. Dummar told reporters that in 1975 he had picked up a man who claimed to be Howard Hughes and had dropped him off in Las Vegas.

Though Dummar first said he had no prior knowledge of the will or how it appeared at the church headquarters, he later claimed that a man drove to his service station and gave him the will with instructions to deliver it to Salt Lake City. Dummar said he had destroyed the instructions.

Investigators discovered that Dummar had checked out a library copy of a book called The Hoax, which recounted the story of Clifford Irving's forgery of an "autobiography" of Hughes. The book contained examples of Hughes's handwriting. Document examiners demonstrated that Hughes's handwriting had changed before the time the Mormon Will supposedly was written. In addition, the examiners concluded that the will was a crude forgery. Nevertheless, it took a seven-month trial and millions of dollars from the Hughes estate to prove that the will was a fake. In the end, the court ruled that the will was a forgery.

No valid will was ever found. Dummar's story later became the subject of the 1980 motion picture Melvin and Howard.

further readings

Freese, Paul L. 1986. "Howard Hughes and Melvin Dummar: Forensic Science Fact Versus Film Fiction." Journal of Forensic Sciences 31 (January).

Marks, Marlene Adler. 1981. "Where There's a Will … Rhoden Recoups after Howard Hughes Fiasco." National Law Journal (January 5).

The right to dispose of property by a will is controlled completely by statute. Since the 1970s, many states have adopted all or parts of the uniform probate code, which attempts to simplify the laws concerning wills and estates. When a person dies, the law of his domicile (permanent residence) will control the method of distribution of his personal property, such as money, stock, or automobiles. The real property, such as farm or vacant land, will pass to the intended heirs according to the law of the state in which the property is located. Though a testator may exercise much control over the distribution of property, state laws protect spouses and children by providing ways of guaranteeing that a spouse will receive a minimum amount of property, regardless of the provisions of the will.

Requirements of a Will

A valid will cannot exist unless three essential elements are present. First, there must be a competent testator. Second, the document purporting to be a will must meet the execution requirements of statutes, often called the Statute of Wills, designed to ensure that the document is not a fraud but is the honest expression of the testator's intention. Third, it must be clear that the testator intended the document to have the legal effect of a will.

If a will does not satisfy these requirements, any person who would have a financial interest in the estate under the laws of descent and distribution can start an action in the probate court to challenge the validity of the will. The persons who inherit under the will are proponents of the will and defend it against such an attack. This proceeding is known as a will contest. If the people who oppose the admission of the will to probate are successful, the testator's estate will be distributed according to the laws of descent and distribution or the provisions of an earlier will, depending on the facts of the case.

Competent Testator A competent testator is a person who is of sound mind and requisite age at the time that he makes the will, not at the date of his death when it takes effect. Anyone over a minimum age, usually 18, is legally capable of making a will as long as he is competent. A person under the minimum age dies intestate (regardless of efforts to make a will), and his property will be distributed according to the laws of descent and distribution.

An individual has testamentary capacity (sound mind) if he is able to understand the nature and extent of his property, the natural objects of his bounty (to whom he would like to leave the estate), and the nature of the testamentary act (the distribution of his property when he dies). He must also understand how these elements are related so that he can express the method of disposition of property.

A testator is considered mentally incompetent (incapable of making a will) if he has a recognized type of mental deficiency, such as a severe mental illness. Mere eccentricities, such as the refusal to bathe, are not considered insane delusions, nor are mistaken beliefs or prejudices about family members. A person who uses drugs or alcohol can validly execute a will as long as he is not under the influence of drugs or intoxicated at the time he makes the will. Illiteracy, old age, or severe physical illness do not automatically deprive a person of a testamentary capacity, but they are factors to be considered along with the particular facts of the case.

Execution of Wills

Every state has statutes prescribing the formalities to be observed in making a valid will. The requirements relate to the writing, signing, witnessing, or attestation of the will in addition to its publication. These legislative safeguards prevent tentative, doubtful, or coerced expressions of desire from controlling the manner in which a person's estate is distributed.

Writing Wills usually must be in writing but can be in any language and inscribed with any material or device on any substance that results in a permanent record. Generally, most wills are printed on paper to satisfy this requirement. Many states do not recognize as valid a will that is handwritten and signed by the testator. In states that do accept such a will, called a holographic will, it usually must observe the formalities of execution unless exempted by statute. Some jurisdictions also require that such wills be dated by the testator's hand.

Signature A will must be signed by the testator. Any mark, such as an X, a zero, a check mark, or a name intended by a competent testator to be his signature to authenticate the will, is a valid signing. Some states permit another person to sign a will for a testator at the testator's direction or request or with his consent.

Many state statutes require that the testator's signature be at the end of the will. If it is not, the entire will may be invalidated in those states, and the testator's property will pass according to the laws of descent and distribution. The testator should sign the will before the witnesses sign, but the reverse order is usually permissible if all sign as part of a single transaction.

Witnesses Statutes require a certain number of witnesses to a will. Most require two, although others mandate three. The witnesses sign the will and must be able to attest (certify) that the testator was competent at the time he made the will.

Though there are no formal qualifications for a witness, it is important that a witness not have a financial interest in the will. If a witness has an interest, his testimony about the circumstances will be suspect because he will profit by its admission to probate. In most states such witnesses must either "purge" their interest under the will (forfeit their rights under the will) or be barred from testifying, thereby defeating the testator's testamentary plan. If, however, the witness also would inherit under the laws of descent and distribution should the will be invalidated, he will forfeit only the interest in excess of the amount he would receive if the will were voided.

Acknowledgment A testator is usually required to publish the will—that is, to declare to the witnesses that the instrument is his will. This declaration is called an acknowledgment. No state requires, however, that the witnesses know the contents of the will.

Although some states require a testator to sign the will in the presence of witnesses, the majority require only an acknowledgment of the signature. If a testator shows the signature on a will that he has already signed to a witness and acknowledges that it is his signature, the will is thereby acknowledged.

Attestation An attestation clause is a certificate signed by the witnesses to a will reciting performance of the formalities of execution that the witnesses observed. It usually is not required for a will to be valid, but in some states it is evidence that the statements made in the attestation are true.

Testator's Intent

For a will to be admitted to probate, it must be clear that the testator acted freely in expressing his testamentary intention. A will executed as a result of undue influence, fraud, or mistake can be declared completely or partially void in a probate proceeding.

Undue Influence Undue influence is pressure that takes away a person's free will to make decisions, substituting the will of the influencer. A court will find undue influence if the testator was capable of being influenced, improper influence was exerted on the testator, and the testamentary provisions reflect the effect of such influence. Mere advice, persuasion, affection, or kindness does not alone constitute undue influence.

Questions of undue influence typically arise when a will deals unjustly with persons believed to be the natural objects of the testator's bounty. However, undue influence is not established by inequality of the provisions of the will, because this would interfere with the testator's ability to dispose of the property as he pleases. Examples of undue influence include threats of violence or criminal prosecution of the testator, or the threat to abandon a sick testator.

Fraud Fraud differs from undue influence in that the former involves misrepresentation of essential facts to another to persuade him to make and sign a will that will benefit the person who misrepresents the facts. The testator still acts freely in making and signing the will.

The two types of fraud are fraud in the execution and fraud in the inducement. When a person is deceived by another as to the character or contents of the document he is signing, he is the victim of fraud in the execution. Fraud in the execution includes a situation where the contents of the will are knowingly misrepresented to the testator by someone who will benefit from the misrepresentation.

Fraud in the inducement occurs when a person knowingly makes a will but its terms are based on material misrepresentations of facts made to the testator by someone who will ultimately benefit.

Persons deprived of benefiting under a will because of fraud or undue influence can obtain relief only by contesting the will. If a court finds fraud or undue influence, it may prevent the wrongdoer from receiving any benefit from the will and may distribute the property to those who contested the will.

Mistake When a testator intended to execute his will but by mistake signed the wrong document, that document will not be enforced. Such mistakes often occur when a husband and wife draft mutual wills. The document that bears the testator's signature does not represent his testamentary intent, and therefore his property cannot be distributed according to its terms.

Special Types of Wills

Some states have statutes that recognize certain kinds of wills that are executed with less formality than ordinary wills, but only when the wills are made under circumstances that reduce the possibility of fraud.

Holographic Wills A holographic will is completely written and signed in the handwriting of the testator, such as a letter that specifically discusses his intended distribution of the estate after his death. Many states do not recognize the validity of holographic wills, and those that do require that the formalities of execution be followed.

Nuncupative Wills A nuncupative will is an oral will. Most states do not recognize the validity of such wills because of the greater likelihood of fraud, but those that do impose certain requirements. The will must be made during the testator's last sickness or in expectation of imminent death. The testator must indicate to the witnesses that he wants them to witness his oral will. Such a will can dispose of only personal, not real, property.

Soldiers' and Sailors' Wills Several states have laws that relax the execution requirements for wills made by soldiers and sailors while on active military duty or at sea. In these situations a testator's oral or handwritten will is capable of passing personal property. Where such wills are recognized, statutes often stipulate that they are valid for only a certain period of time after the testator has left the service. In other instances, however, the will remains valid.

Revocation of a Will

A will is ambulatory, which means that a competent testator may change or revoke it at any time before his death. Revocation of a will occurs when a person who has made a will takes some action to indicate that he no longer wants its provisions to be binding and the law abides by his decision.

For revocation to be effective, the intent of the testator, whether express or implied, must be clear, and an act of revocation consistent with this intent must occur. Persons who wish to revoke a will may use a codicil, which is a document that changes, revokes, or amends part or all of a validly executed will. When a person executes a codicil that revokes some provisions of a previous will, the courts will recognize this as a valid revocation. Likewise, a new will that completely revokes an earlier will indicates the testator's intent to revoke the will.

Statements made by a person at or near the time that he intentionally destroys his will by burning, mutilating, or tearing it clearly demonstrate his intent to revoke.

Sometimes revocation occurs by operation of law, as in the case of a marriage, divorce, birth of a child, or the sale of property devised in the will, which automatically changes the legal duties of the testator. Many states provide that when a testator and spouse have been divorced but the testator's will has not been revised since the change in marital status, any disposition to the former spouse is revoked.

Protection of the Family

The desire of society to protect the spouse and children of a decedent is a major reason both for allowing testamentary disposition of property and for placing limitations upon the freedom of testators.

Surviving Spouse Three statutory approaches have developed to protect the surviving spouse against disinheritance: dower or curtesy, the elective share, and community property.

Dower or curtesy At common law, a wife was entitled to dower, a life interest in one-third of the land owned by her husband during the marriage. Curtesy was the right of a husband to a life interest in all of his wife's lands. Most states have abolished common-law dower and curtesy and have enacted laws that treat husband and wife identically. Some statutes subject dower and curtesy to payment of debts, and others extend rights to personal property as well as land. Some states allow dower or curtesy in addition to testamentary provisions, though in other states dower and curtesy are in lieu of testamentary provisions.

Elective share Although a testator can dispose of his property as he wishes, the law recognizes that the surviving spouse, who has usually contributed to the accumulation of property during the marriage, is entitled to a share in the property. Otherwise, that spouse might ultimately become dependent on the state. For this reason, the elective share was created by statute in states that do not have community property.

Most states have statutes allowing a surviving spouse to elect either a statutory share (usually one-third of the estate if children survive, one-half otherwise), which is the share that the spouse would have received if the decedent had died intestate, or the provision made in the spouse's will. As a general rule, surviving spouses are prohibited from taking their elective share if they unjustly engaged in desertion or committed bigamy.

A spouse can usually waive, release, or contract away his statutory rights to an elective share or to dower or curtesy by either an antenuptial (also called prenuptial) or postnuptial agreement, if it is fair and made with knowledge of all relevant facts. Such agreements must be in writing.

Community property A community property system generally treats the husband and wife as co-owners of property acquired by either of them during the marriage. On the death of one, the survivor is entitled to one-half the property, and the remainder passes according to the will of the decedent.

Children Generally parents can completely disinherit their children. A court will uphold such provisions if the testator specifically mentions in the will that he is intentionally disinheriting certain named children. Many states, however, have pretermitted heir provisions, which give children born or adopted after the execution of the will and not mentioned in it an intestate share, unless the omission appears to be intentional.

Other Limitations on Will Provisions

The law has made other exceptions to the general rule that a testator has the unqualified right to dispose of his estate in any way that he sees fit.

Charitable Gifts Many state statutes protect a testator's family from disinheritance by limiting the testator's power to make charitable gifts. Such limitations are usually operative only where close relatives, such as children, grandchildren, parents, and spouse, survive.

Charitable gifts are limited in certain ways. For example, the amount of the gift can be limited to a certain proportion of the estate, usually 50 percent. Some states prohibit deathbed gifts to charity by invalidating gifts that a testator makes within a specified period before death.

Ademption and Abatement ademption is where a person makes a declaration in his will to leave some property to another and then reneges on the declaration, either by changing the property or removing it from the estate. Abatement is the process of determining the order in which property in the estate will be applied to the payment of debts, taxes, and expenses.

The gifts that a person is to receive under a will are usually classified according to their nature for purposes of ademption and abatement. A specific bequest is a gift of a particular identifiable item of personal property, such as an antique violin, whereas a specific devise is an identifiable gift of real property, such as a specifically designated farm.

A demonstrative bequest is a gift of a certain amount of property—$2,000, for example—out of a certain fund or identifiable source of property, such as a savings account at a particular bank.

A general bequest is a gift of property payable from the general assets of the testator's estate, such as a gift of $5,000.

A residuary gift is a gift of the remaining portion of the estate after the satisfaction of other dispositions.

When specific devises and bequests are no longer in the estate or have been substantially changed in character at the time of the testator's death, this is called ademption by extinction, and it occurs irrespective of the testator's intent. If a testator specifically provides in his will that the beneficiary will receive his gold watch, but the watch is stolen prior to his death, the gift adeems and the beneficiary is not entitled to anything, including any insurance payments made to the estate as reimbursement for the loss of the watch.

Ademption by satisfaction occurs when the testator, during his lifetime, gives to his intended beneficiary all or part of a gift that he had intended to give the beneficiary in her will. The intention of the testator is an essential element. Ademption by satisfaction applies to general as well as specific legacies. If the subject matter of a gift made during the lifetime of a testator is the same as that specified in a testamentary provision, it is presumed that the gift is in lieu of the testamentary gift where there is a parent-child or grandparent-parent relationship.

In the abatement process, the intention of the testator, if expressed in the will, governs the order in which property will abate to pay taxes, debts, and expenses. Where the will is silent, the following order is usually applied: residuary gifts, general bequests, demonstrative bequests, and specific bequests and devises.

further readings

Brown, Gordon W. 2003. Administration of Wills, Trusts, and Estates. 3d ed. Clifton Park, N.Y.: Thomson/Delmar Learning.

cross-references

Estate and Gift Taxes; Executors and Administrators; Husband and Wife; Illegitimacy; Living Will; Parent and Child; Postmarital Agreement; Premarital Agreement; Trust.

will¹ / wil/ • modal verb (3rd sing. present will; past would / woŏd; wəd/ ) 1. expressing the future tense: you will regret it when you are older. ∎  expressing a strong intention or assertion about the future: come what may, I will succeed.2. expressing inevitable events: accidents will happen.3. expressing a request: will you stop here, please. ∎  expressing desire, consent, or willingness: will you have a cognac?4. expressing facts about ability or capacity: a rock so light that it will float on water your tank will hold about 26 gallons.5. expressing habitual behavior: she will dance for hours. ∎  (pronounced stressing “will”) indicating annoyance about the habitual behavior described: he will keep intruding.6. expressing probability or expectation about something in the present: they will be miles away by now.PHRASES: will do inf. expressing willingness to carry out a request or suggestion: “Might be best to check.” “Righty-oh, will do.”will² • n. 1. [usu. in sing.] the faculty by which a person decides on and initiates action: she has an iron will a battle of wills between children and their parents | an act of will. ∎  (also will·pow·er) control deliberately exerted to do something or to restrain one's own impulses: a stupendous effort of will. ∎  a deliberate or fixed desire or intention: Jane had not wanted them to stay against their will | the will to live. ∎  the thing that one desires or ordains: the disaster was God's will. 2. a legal document containing instructions as to what should be done with one's money and property after one's death.• v. [tr.] 1. chiefly formal poetic/lit. intend, desire, or wish (something) to happen: he was doing what the saint willed | marijuana, dope, grass—call it what you will. ∎  [tr.] make or try to make (someone) do something or (something) happen by the exercise of mental powers: reluctantly he willed himself to turn and go back she stared into the fog, willing it to clear. 2. (will something to) bequeath something to (someone) by the terms of one's will. ∎  leave specified instructions in one's will: he willed that his body be given to the hospital.PHRASES: at will at whatever time or in whatever way one pleases: it can be molded and shaped at will he was shoved around at will.have a will of one's own have a willful character.have one's will archaic obtain what one wants.if you will said when politely inviting a listener or reader to do something or when using an unusual or fanciful term: imagine, if you will, a typical silversmith's shop.with the best will in the world however good one's intentions (used to imply that success in a particular undertaking is unlikely although desired).with a will energetically and resolutely.DERIVATIVES: willed adj. [in comb.] I'm strong-willed. will-less·ness n.will·er n.

Will

Will, a basic category in philosophy, emerged in the nineteenth century as a concern of psychical research, as attempts were made to prove that human will was a dynamic energy. The earliest experimental apparatus was constructed by M. E. Sa-vary d'Odiardy. An investigation of the instrument by the Society for Psychical Research, London (Proceedings, vol. 8, p. 249) dismissed his claims.

Another instrument was designed by Sydney Alrutz, of the University of Uppsala, Sweden. He called it a volometer or "will board." It comprised a small board resting on knife-edged pegs. The longer and heavier end was supported by means of a string attached to a letter scale and held the board in horizontal position. In this position the scale registered a pressure of five ounces. If the short end was depressed, the long end rose and the letter scale showed a decrease of weight.

The task put before the subjects of Alrutz's experiment was to fix their attention on the long end and will its depression. In a number of cases, 40-100 grams of pressure was thus obtained. Among those who attempted the experiment were many members of the Sixth Psychological Congress at Geneva in August, 1909.

Theodore Flournoy wrote after his own test:

"I was able to prove conclusively, after three trials, and under conditions precluding all possibility of fraud or illusion, that the will of these ladies, concentrated upon a certain material object, with a desire to produce a movement in it, ended by producing this movement as if by means of a fluid or an invisible force obeying their mental command."

While these results were impressive, the experiment was flawed by severe methodological vagueness. The experiment demonstrated an unusual effect, but said nothing about the agency involved in causing the change. It could just as easily been an experiment to demonstrate "mesmeric fluid" or ectoplasmic emanations. The intrusion of concepts of "will" have been discarded by parapsychologists in the twentieth century.

will3 he that will not when he may, when he will he shall have nay proverbial saying, late 10th century, meaning that if an opportunity is not taken when offered, it may well not occur again.
he who wills the end, wills the means proverbial saying, late 17th century, meaning that someone sufficiently determined upon an outcome will also be ready to accept whatever is necessary to achieve it. (Compare where there's a will, there's a way at will1.)
will the real — please stand up? catchphrase from an American TV game show (1955–66) in which a panel was asked to identify the ‘real’ one of three candidates all claiming to be a particular person; after the guesses were made, the compère would request the ‘real’ candidate to stand up.