Have you ever wondered why the personal instrument in which you express your desires is called the “last will and will?” Few people, including estate planning attorneys, know why. In fact, history is a bit muddy. Occasionally, customers will ask this question. Now you will know the answer!
The “Last Will” part is believed to come from common English where the testator was expressing what he “wanted” to happen to their estate. It appears that this was originally intended for those without heirs. Laws at that time devised real estate according to bloodline. Therefore, only when there was no dynasty did the last will become relevant. The “will” was the part intended to transfer personal property.
The term “and Testament” was combined after the Norman conquest of England by the French Duke of Normandy, who became known as William the Conqueror after the Battle of Hastings (and his subsequent coronation) in 1066. Old English common law and French civil law became somewhat mixed and merged Terminology for clarification.
In the last episode of Danger, the evidence was, “After the Norman conquest, lawyers made sure they were clear in ‘Last Will’ (an Anglo-Saxon word) and ‘this French-derived term?'” The contestant answered “will” correctly.
The term dates back a thousand years. But the document type is still in use today, as we know. It is often combined with a trust, among other reasons to avoid the probate process. A will that sends assets into a trust is called a “flowing will”.
The next time one of your clients asks why his “will” is called “the last will and testament,” you’ll have a story to tell that goes back nearly 1,000 years. And you can weave in the story the fact that people were doing estate planning long before that. Justinian’s law recognized the commandments in ancient Rome. It’s possible that temporary tools were around long before that.
Stephen C. Hartnett, JD, LLM
American Academy of Estate Planning Lawyers, Inc.
9444 Balboa Street, Suite 300
San Diego, CA 92123
Phone: (858) 453-2128