Also known as: mens testatoris · testator's intent · testamentary intent
Written by attorneys · grounded in primary & secondary sources — see below
A principle of will construction requiring courts to ascertain and effectuate the testator's intent as expressed in the document. The maxim directs that a writing qualifies as a will only when the decedent executed it with the purpose that it operate at death. Courts begin with any clear expression of intent in the document itself and treat that expression as creating a strong but rebuttable presumption.
After Maurice Marshall died, his niece Melanie Morris petitioned for a declaration of intestacy. She offered evidence of death and venue but produced no proof that the signed document Maurice left behind lacked testamentary intent. The court placed the burden on Melanie to establish lack of intent and admitted the document to probate when she failed to meet it.
Marco Marquez signed a document reciting that it was his last will and left his house to his girlfriend. He told friends the signing was only to persuade her to move in with him. The girlfriend offered the document for probate. The court admitted extrinsic evidence of the non-testamentary purpose and refused probate.
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After Mariam Mansour died, her estate's attorney received a subpoena for notes of conversations with her about a contested will. The estate invoked the attorney-client privilege. The court held that the privilege survived death to protect the confidentiality of communications bearing on testamentary intent.
Ming Ma wrote a letter to his companion Meredith Maxwell stating that he wanted her to have his Montana cabin. He signed and dated the letter in his handwriting. After his death the court examined the letter's language and surrounding circumstances and found it expressed present testamentary intent sufficient to operate as a holographic codicil.
Monarch Pharmaceuticals' founder left property in trust for a park open only to white persons. After his death the court construed the will's language to determine whether the racial restriction reflected the testator's intent or could be severed. The court examined the document's terms and held that the restriction controlled the disposition.
A contestant must establish by a preponderance of the evidence that the decedent lacked testamentary intent when signing the document. The burden includes showing that the writing was executed for some non-testamentary purpose rather than to dispose of property at death.
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No. The label creates only a rebuttable presumption of testamentary intent. Extrinsic evidence remains admissible to show the document was executed for a collateral purpose and therefore never took effect as a will.
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Extrinsic evidence is admissible when the proponent or contestant seeks to show that the decedent signed the document for a purpose other than to make a will. Courts permit such evidence to rebut the presumption arising from the face of the instrument.
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The maxim requires the court to determine whether the handwritten document was executed with the purpose that it operate at death. Handwriting, signature, and date supply formal requirements, but the surrounding circumstances must still demonstrate testamentary intent.
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…he wrote the provision creating Baconsfield as a public park open only to the white race, he was not merely expressing his own testamentary intent, but was taking advantage of the special power Georgia had conferred by §§ 69-504 and 69-505 on testators seeking to establish racially segregated public parks. As Mr. Justice White…