Legal Definitions - testamentary instrument

A testamentary instrument is a formal legal document that expresses a person's instructions for the distribution of their property and assets after their death. It is called "testamentary" because it only takes effect upon the death of the person who created it (the testator), and it can typically be changed or revoked during their lifetime.

The most common type of testamentary instrument is a will, but the term can encompass other documents that dictate how assets are handled posthumously, provided they meet the legal requirements for such instruments in a particular jurisdiction.

Here are some examples:

• Example 1: A Standard Will

  Maria, a retired teacher, drafts a document outlining that her house should go to her daughter, her savings account should be divided equally between her two grandchildren, and her collection of antique books should be donated to the local library. She signs this document in front of witnesses, as required by law. This document is a testamentary instrument because it specifies how her assets will be distributed after her death and only becomes legally effective upon her passing.

• Example 2: A Codicil to an Existing Will

  Years after creating his initial will, David decides he wants to add a specific bequest of his vintage car collection to his nephew, which was not mentioned in his original document. Instead of writing an entirely new will, he drafts a separate, legally executed document called a codicil that specifically amends his existing will to include this new instruction. This codicil is also a testamentary instrument because it modifies his posthumous distribution plan and takes effect only upon his death, alongside his original will.

• Example 3: A Will Creating a Testamentary Trust

  Sarah wants to ensure that her young children are financially provided for, but she doesn't want them to receive a large inheritance outright if she passes away while they are still minors. In her will, she includes provisions to establish a testamentary trust. This trust will be created upon her death, funded by assets from her estate, and managed by a designated trustee who will distribute funds for her children's education and living expenses until they reach a specified age. Sarah's will, which contains the instructions for creating and funding this trust, serves as the testamentary instrument because it dictates the posthumous management and distribution of her assets through the trust structure.