What is the Difference Between a Testament and a Will?

There is no difference between a testament and a will these days.

In recent times, the words “testament” and “will” are often seen together as “last will and testament.” A last will and testament is a legal document that outlines a person’s final wishes regarding the distribution of assets and property after death and often some other matters, such as the guardianship of minor children.

However, there was a distinction between a testament and a will in the 18th and 19th centuries. They were two separate documents containing instructions regarding the disposition of  different types of property after the owner’s death. 

A will traditionally included only instructions regarding real estate. It dealt with the disposition of land and structures on it that were owned by the testator.

A testament originally contained instructions for personal property, such as money, jewelry, vehicles, precious goods, etc. The testament described how these personal items were to be divided and inherited among beneficiaries. 

The two separate documents were used at the time because of laws that prohibited certain groups from owning land. For example, a woman often could not own real estate without the approval of her husband. It was possible for women to own personal property, such as jewelry, small trinkets and art, so she could use a testament to designate which people would inherit her personal property. 

However, as women gained more civil rights and freedom, such as being allowed to own real estate, the distinction between a will and testament became blurred. The former separation of real property and personal property, respectively, between the documents morphed into one document that lays out instructions for both types of property.

The last will and testament now is a single document that includes the disposition of all the property and assets of a person. Listed below are the general requirements:

• The testator must demonstrate capacity and competency at the time the will is made, and that he or she is executing the document willingly and freely. Any person over the age of 18 with testamentary capacity, or sound mind, may legally execute a valid will.
• The document should be in writing, and typed, in any language and on any material. There are exceptions in some states, like the holographic will, which is entirely handwritten.
• It should be dated and signed in the presence of at least two witnesses, who are disinterested and not listed as beneficiaries. The witnesses will sign and attest that the testator was willing and competent at the time he or she made the last will and testament.
• The testator’s signature should be placed at the very end, signing into effect anything listed prior. Usually, any text listed following the signature is not taken into effect.
• The testator should formally declare that the document stands as his last will and testament.

Valuable contributions to this summary of “What is the difference between a Testament and Will?” were made by Bob Carlson, editor of the Retirement Watch financial advisory service and chairman of the Board of Trustees of Virginia’s Fairfax County Employees’ Retirement System with more than $4 billion in assets.

Katie Kao is an editorial intern with Eagle Financial Publications.