A will and testament is a legal declaration of a person’s wishes regarding the disposal of his property after death. Wills are usually executed in a formal document by which the person disposes of his estate to take effect on his death.

Wills have been widely recognized for quite a long time. However, until the 1980’s, it was generally accepted that the right to pass property at death was not a constitutionally protected right. In the 1980’s the courts formally recognized the Constitutional right to pass property at death. This recognition came by way of a Constitutional challenge to a law enacted by Congress that intended to give splintered reservation land back to an American Indian tribe.

States now have the ability to adjust the rules of descent and devise. This allows that states to regulate how and when property passes at death. To this end, states have enacted laws for determining when a will is valid and enforceable. These laws have resulted in rules related to witnessing and authenticating wills.

Even with minor defects in the will, states may respect the dispositions of property in the will as long as the dispositions do not violate public policy. For example, a bequest to a child if he marries within a particular religious group does not violate the public policy in favor of marriage. A bequest to a child if he does not marry may violate this public policy and be voidable by the courts. The beneficiary, who is the person with a pecuniary interest, may be able to bring suit to reclaim the property in this situation.

With the power to transmit property firmly established, the states have enacted a number of rules related to the transfer of a person’s estate.