TITLE 12

Decedents' Estates and Fiduciary Relations

Wills

CHAPTER 2. GENERAL PROVISIONS

Subchapter I. Tenets and Principles


Any person of the age of 18 years, or upwards, of sound and disposing mind and memory, may make a will of real and personal estate. No person under the age of 18 years shall be capable of making a will either of real or personal estate.

Code 1852, § 1644; 14 Del. Laws, c. 550, § 5; 15 Del. Laws, c. 165, § 5; Code 1915, § 3240; Code 1935, § 3704; 45 Del. Laws, c. 233, § 1; 12 Del. C. 1953, § 101; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Every will, whether of personal or real estate, must be:

(1) In writing and signed by the testator or by some person subscribing the testator's name in the testator's presence and by the testator's express direction; and

(2) Subject to § 1306 of this title, attested and subscribed in testator's presence by 2 or more credible witnesses.

(b) Any will not complying with subsection (a) of this section shall be void.

Code 1852, § 1645; Code 1915, § 3241; Code 1935, § 3705; 12 Del. C. 1953, § 102; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Any person generally competent to be a witness may act as a witness to a will.

(b) A will or any provision thereof is not invalid because the will is signed by an interested person.

Code 1852, § 1646; Code 1915, § 3242; Code 1935, § 3706; 12 Del. C. 1953, § 103; 59 Del. Laws, c. 384, § 1.;

Lands, tenements and hereditaments are devisable by last will and testament.

Code 1852, § 1643; Code 1915, § 3239; Code 1935, § 3703; 12 Del. C. 1953, § 105; 59 Del. Laws, c. 384, § 1.;

A devise of real estate, without words of limitation, shall be construed to pass the fee simple, or other whole estate, or interest, which the testator could lawfully devise in such real estate, unless a contrary intention appears by the will.

Code 1852, § 1667; Code 1915, § 3243; Code 1935, § 3707; 12 Del. C. 1953, § 106; 59 Del. Laws, c. 384, § 1.;

Any estate, right or interest in lands, acquired by a testator after the making of a will, shall pass thereby in manner as if possessed at the making of the will, unless a contrary intention appears by the will.

Code 1852, § 1668; 18 Del. Laws, c. 671, § 1; Code 1915, § 3244; Code 1935, § 3708; 12 Del. C. 1953, § 107; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;

(a) Where, by the terms of a will or trust instrument, an express power to sell real property is granted to a trustee, such trustee may sell or exchange such real property as is not specifically required to be distributed in kind to any beneficiary, and it shall not be necessary for any beneficiary of the trust to join in the instrument transferring or conveying such property.

(b) Where, by the terms of a will, an executor is expressly directed to sell real property, such executor may sell or exchange such real property and it shall not be necessary for any beneficiary of the estate to join in the instrument transferring or conveying such property.

(c) Where, by the terms of a will, an express power to sell real property is granted to an executor, such executor may sell or exchange such real property as is not specifically devised and as the executor reasonably believes, at the time of such sale or exchange, is necessary to be sold in order to pay the debts of the decedent or the expenses of administration (including estate and inheritance taxes and taxes imposed upon the income of the estate) of the estate, and it shall not be necessary for any beneficiary of the estate to join in the instrument transferring or conveying such property. In any sale of real estate authorized by this subsection (c) of this section, it shall not be necessary for the executor to obtain an Order from the Court of Chancery authorizing the sale pursuant to Chapter 27 of this title.

(d) In any sale made by an executor, administrator or other personal representative or by a trustee pursuant to this section, there shall be no liability upon the purchaser to see to the application of the purchase money, unless the will or trust expressly imposes such liability, and the purchaser shall be entitled to rely without liability therefor upon the representation by the executor in the deed of conveyance that any sale of real property is for the purposes set forth in subsection (c) of this section.

(e) No conveyance by an executor, prior to January 1, 1985, of real property not specifically devised shall be invalid or ineffective solely because 1 or more devisees of such property failed to join in the instrument of conveyance.

(f) For purposes of this section, the term "executor" shall include any personal representative of a testate estate.

Code 1915, § 3244-A; 30 Del. Laws, c. 208, § 1; Code 1935, § 3709; 12 Del. C. 1953, § 108; 59 Del. Laws, c. 384, § 1; 64 Del. Laws, c. 252, § 1; 74 Del. Laws, c. 272, §§ 1-3.;

A last will and testament, or any clause thereof, shall not be altered, or revoked, except by canceling by the testator, or by some person in the testator's presence and by the testator's express direction, or by a valid last will and testament, or by a writing signed by the testator, or by some person subscribing the testator's name in the testator's presence and by the testator's express direction, and attested and subscribed in the testator's presence by 2 or more credible witnesses; but this clause shall not preclude nor extend to an implied revocation.

Code 1852, § 1652; Code 1915, § 3250; Code 1935, § 3715; 12 Del. C. 1953, § 109; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;

If after executing a will, the testator is divorced or the testator's marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse, as executor, trustee, guardian or other fiduciary, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No changes or circumstances other than as described in this section revokes a will or any part thereof.

59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;

Whoever wilfully adds to, alters, defaces, erases, obliterates, mutilates, blots, blurs, hides, conceals, destroys, misplaces with intent to conceal or commits an act of theft of any instrument of writing purporting to be or in the nature of a last will and testament and intended to take effect upon the death of the testator, whether the person shall have been given custody or possession thereof by the testator, or shall have obtained custody or possession of the purported last will and testament in any other manner whatsoever, shall be guilty of a class E felony.

27 Del. Laws, c. 268, § 1; Code 1915, § 3264; Code 1935, § 3728; 12 Del. C. 1953, § 110; 59 Del. Laws, c. 384, § 1.;

(a) A will may validly devise or bequeath property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument other than a will executed before, concurrently with or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable or because the trust was amended after the execution of the will or the testator's death.

(b) Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection (a) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised or bequeathed and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.

(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.

66 Del. Laws, c. 278, § 1; 71 Del. Laws, c. 76, § 1.;

A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing:

(1) Must either be in the handwriting of the testator or be signed by the testator and must identify the items and the legatees with reasonable certainty;

(2) Must not be inconsistent with the terms of the will; and

(3) Must not be inconsistent with any other writing permitted by this section unless the writing is dated in which case the writing with the latest date will control.

Notwithstanding the foregoing, in the case of a writing that includes both provisions for dispositions that are consistent with the terms of the will or any other writing permitted by this section and provisions for dispositions that are inconsistent with the terms of the will or any other writing permitted by this section, such writing shall be admissible under this section as evidence of the intended disposition of those items of tangible personal property that would be disposed of by the provisions of the writing that are not inconsistent with the terms of the will or any other writing permitted by this section. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.

59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1; 77 Del. Laws, c. 98, § 1.;

In the construction or interpretation of any will or trust, the following rules shall apply in the absence of any contrary expression of intent in such will or trust:

(1) The period of time during which an interest in trust is revocable pursuant to the uncontrolled volition of the person having such a power of revocation shall not be included in determining whether the trust is invalid under the rule against perpetuities.

(2) There shall be no presumption that a testator or trustor did or did not intend that any law apply to a will or trust which was not in effect on the date of execution of such will or trust instrument.

(3) Except where the will or trust instrument expressly provides to the contrary, the determination of a class shall be governed by the law in effect on the date the will or trust instrument becomes irrevocable.

64 Del. Laws, c. 253, § 1; 65 Del. Laws, c. 422, § 2.;

Solely for the purposes of determining the rights of any person to property of a decedent, it shall be presumed that tangible personal property acquired

(1) By a decedent through gift or inheritance, or

(2) Solely with the funds of the decedent, or

(3) Acquired by the decedent before marriage to the surviving spouse,

is the sole property of the decedent notwithstanding that such property consists of household goods or that any such property was subject to joint possession and use by a decedent and the surviving spouse.

66 Del. Laws, c. 372, § 1; 70 Del Laws, c. 186, § 1.;