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Wills and Prenuptial Agreements

April 21, 2023
Joel Hamner
Wills
Serving North Alabama

Wills Through Time

Wills are among the oldest documents in civilization. One of the earliest was found in Egypt in the ruined Middle Kingdom city of Lahun and is dated around 1850 B.C. Written in cursive hieratic script on papyrus, it bequeaths the deceased’s property to his widow and then to his children.

The History and Legal Rules of Wills

From Ancient Inscriptions to Alabama’s Elective Share Law

Another papyrus will, held in Oxford by the Ashmolean Museum, dates from 1200 B.C. In it, an elderly woman disinherits those of her children who failed to care for her in her widowhood.

But wills in hieroglyphic writing on the stone walls of tombs are even older. One testamentary inscription on the wall of a tomb chamber in Tehna near Minya in Egypt goes back to 2400 B.C.

Wills are usually written on paper, but this is not essential. During the Dark Ages, they were sometimes inscribed on bark. More recently one was written in indelible ink on an eggshell. Another used an old Christmas card. A man once found a Will spelled out on the run of a stepladder he borrowed from a neighbor. When the ladder was returned, a Los Angeles judge admitted it to probate.

The legal rule is that “a will speaks from death” but this must not be taken too literally. Dictating into a recording machine will not do. Even a video tape is of no effect unless accompanied by writing. One man donned a shroud and addressed the camera from his coffin but was nevertheless declared intestate.

A husband or wife can not disinherit the other absent an agreement reached before marriage. These agreements are commonly known as pre-nuptial agreements.

A valid pre-nuptial agreement provides for a division of property in case of a divorce. It also allows a will to be written that would otherwise be invalid or subject to a claim of an elective share.

An “elective share” of an estate is, in Alabama, a minimum of 1/3 of the estate, and every spouse is entitled to at least that under Alabama law, no matter what the Will says absent a valid pre-nuptial agreement.

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