A devise refers to a gift of real property given through a person’s will. Historically, this term has traditionally applied to the testamentary transfer of real estate specifically. In modern usage, however, the term may also encompass testamentary gifts of personal property, though this broader application is more commonly referred to as a bequest.
Types of Devise
1. Specific Devise
A specific devise involves the transfer of a particular item or piece of property detailed in the will. For example, a testator might devise “my house at 123 Elm Street” to a relative.
2. General Devise
A general devise is not limited to a specific item but is a more general instruction. For instance, a testator might devise a certain percentage of their estate in real property or simply “all my real property”.
3. Residuary Devise
A residuary devise pertains to any portion of the estate that is left over after all specific and general devises, bequests, and debts have been satisfied. This is often termed the “residue” of the estate.
Legal Considerations
Validity of Devise
The validity of a devise depends on several legal criteria:
- Capacity of the Testator: The person making the will (the testator) must have the legal capacity to create a will.
- Intent: The testator must have clear intention to transfer the property as specified.
- Documentation: The will must fulfill legal requirements, such as being in writing, signed by the testator, and witnessed.
- Effectiveness: The property must be accurately described and capable of being transferred.
Challenges to Devise
Devisees may face legal challenges such as:
- Errors in Description: Misidentification of the property can lead to disputes.
- Heir Claims: Legal heirs might contest the will if they feel unfairly disinherited or overlooked.
- Executor’s Role: The executor of the will has the fiduciary duty to ensure the devises are honored, worth respecting the legal framework.
Historical Context
The concept of devising property has origins in common law and has evolved over centuries:
- Medieval England: Initially limited to land holdings among the nobility.
- Statute of Wills (1540): Expanded the rights to devise property through wills, both real and personal, following a shift in feudal laws.
Comparisons: Devise vs. Bequest
While devise traditionally concerns real property, bequest pertains to personal property. Modern legal terminology and layperson usage often blur these distinctions, leading to interchangeable application in some contexts.
Related Terms
- Bequest: A bequest is a testamentary gift of personal property and is analogous to a devise but specifically pertains to movable items.
- Legacy: A legacy includes both devises and bequests, signifying any type of gift left in a will.
- Codicil: A codicil is an amendment or addition to an existing will, which can alter, modify, or clarify a devise.
Frequently Asked Questions (FAQs)
What is a devise in simple terms?
A devise is a gift of real property given through a will.
Can a will include both devises and bequests?
Yes, a will can contain both devises (gifts of real property) and bequests (gifts of personal property).
Is it necessary to specify a property in detail for a devise?
Yes, specificity helps avoid disputes and ensures the accurate transfer of the intended property.
References
- “Wills, Trusts, and Estates,” authors: Dukeminier, Sitkoff, and Lindgren.
- Cornell Law School, Legal Information Institute: Wills.
Summary
In summary, a devise is a legal term referring to the testamentary disposition of real property through a will. Over time, its scope has broadened to occasionally include personal property, though this is more often referred to as a bequest. Devises can be specific, general, or residuary, each having particular legal nuances and requirements to ensure the testator’s intentions are honored effectively.
By understanding the historical development, legal considerations, and distinctions between related terms, one can better navigate the complexities of estate planning and testamentary gifts.
