Texas Wills and Estates: Cases and Materials

Possessions. Property ownership. Think about all the things you own: clothes, a car, jewelry, a television, a computer, a stereo system, a home, and even this book. Barring bankruptcy, excessive spending habits, natural disasters, thievery, or large expenses such as those associated with a long-term illness, you will continue to accumulate possessions and will own more property as you grow older. When the inevitable comes and you are metabolically challenged, who will take over as the new owner of what you have left behind?
Early in the history of mankind, owning property was not a concern. Ancient peoples were nomadic and thus real property ownership was not an issue. There was just personal property such as clothes, weapons, farm implements, food preparation equipment, and perhaps some jewelry or other ornamentation. Where did this stuff go when the owner died? Before organized civilizations developed, the first person who picked up a deceased person’s property after the person died would become the new owner. Just as they do today, some people died at the hands of the person who wanted to be the owner of their property. As people banded together in groups for camaraderie and survival, they needed to develop rules for the transmission of property upon death. An uncontrolled scramble for a decedent’s property would not be conducive to harmonious living.
In many of these early cultures, the family ownership model of personal property prevailed. When a person died, there was no need for a formal transfer of property because the property belonged to the family, rather than the deceased individual. As civilizations developed, however, many recognized individual property ownership and thus more sophisticated methods for handling the transfer of ownership became necessary.
Some societies sidestepped the property transfer issue by including the deceased person’s property in the decedent’s place of burial, be it a simple burial mound or a sophisticated tomb such as a pyramid. This procedure allowed the decedent to take the property with him or her to an after-life existence or use it upon returning to this world. Although the burying of property with a deceased person is now viewed as an inefficient use of resources, many cultures still include some of a decedent’s property with the decedent. For example, people following Western religions are often buried in favorite clothes or jewelry, and Native American ceremonies may include the burial of certain personal items with the deceased.
Most cultures eventually had to decide who among the survivors should have ownership of a decedent’s property. Accordingly, either by custom or through more formal mechanisms, societies devised a fixed set of rules to control property transference. These rules typically stressed the importance of family relationships, but the way in which family relationships were determined varied tremendously among different societies. For example, some determined relationships through the mother’s side of the family while others stressed the father’s side. Rules often varied depending on the age or sex of the surviving family members. The rules were typically rigid and did not allow for alteration due to the circumstances or the desires of the decedent. These rules evolved into what we now call intestate succession or descent and distribution.
Societies also developed methods for a person to issue instructions while alive which would specify the new owners of the person’s property upon death. This power of testation has a basis in Egyptian society perhaps as long ago as 2900 B.C. Greek and Roman civilizations had extensive rules regarding wills; you can even find translations of wills of people like Aristotle and Plato. The development of wills at common law began in the Anglo-Saxon era, grew after the Norman Conquest of 1066 A.D., and was formally codified in 1540 in the English Statute of Wills, the precursor to the modern law of wills.