No matter if it’s a family home or a multi-million dollar estate, you want to ensure that your will correctly designates who inherits what assets. Known as your last will and testament for a reason, it is the final message you leave behind for your family and friends.
However, what happens if your will does not clearly state your wishes? It may result in loopholes that can be contested, or worse, declared invalid. What makes a will invalid?
A holographic will is handwritten with no signatures from witnesses. While some states consider this valid, many do not. In those states, a handwritten will may be deemed invalid.
Interestingly, in certain states, oral wills are considered valid under specific circumstances.
Check the laws in your state to ensure that your holographic will is acceptable.
When your circumstances change, such as getting married or having a baby, many people wish to amend their wills.
If you don’t revoke your previous will, confusion may arise. However, if your new will contains specific language, there should be no issue. The language should state: “I revoke all previously executable wills.”
The best practice is to revoke the previous will.
The testator must be of “sound mind” to sign a will, but in many states, this requirement is low. This can be confusing as in many states, the level of capacity required to sign a standard contract is much higher.
Most states have requirements for the testator’s capacity, where they need to understand at least two concepts.
First, the testator is aware of the extent of their assets (what they own), and secondly, they must understand the natural objects of their bounty (i.e., heirs and next of kin).
However, when the testator meets the capacity requirement, the burden of proving incapacity falls on the challengers. They must provide clear and convincing evidence that the testator lacked testamentary capacity. They must present evidence such as aging, dementia, delirium, mental illness, cognitive impairment, or similar conditions.
Evidence may come in the form of medical records or sworn testimonies from healthcare providers, family caregivers, etc., who witnessed the testator’s condition at the relevant time.
Some states require notarization of the signature when signing the will. You cannot sign first and then have it notarized, as this would render the will invalid, although most notaries would not do so regardless.
Other states require multiple signatures on the will at the time of signing. It is wise to verify with the laws of your state or a competent attorney specializing in estate planning to ensure you sign the will correctly.
Generally, states require two to three witnesses to attest to the signing of the will. They must all be at least 18 years old. Witnesses must not only see you sign the will but also attest to your mental capacity at the time. Beneficiaries or executors should serve as witnesses to the will signing.
Witnesses need to sign their attestation to witnessing you sign the will.
Undue influence is another way a will is invalidated. This occurs when someone influences or coerces the testator to change their intentions for the influencer’s benefit. This may be related to the testator lacking testamentary capacity.
For this reason, the influencer may use force or isolate threats to sway the testator.
If the will is challenged based on these grounds, challengers must present clear and convincing evidence to prove this.
If someone misleads descendants about the contents of the will, or they are led to believe they are signing a document other than their will, fraud occurs.
Every state mandates specific language to be used in the will. Understanding the laws in your state or consulting a knowledgeable attorney specializing in estate law is crucial.
The primary language in any state includes:
• This is my last will and testament
• A clear list of beneficiaries
• Naming of the executor
Usually, if your will is written in one state but you move to another, the will should be accepted. However, it must be written according to the laws of the initial state to be valid in your new state.
If the will is declared invalid, assets will be distributed based on the previous will. If there was no prior will, assets will be distributed according to intestacy rules. In other words, it will be treated as if the deceased passed away without a will.
This means assets will only be distributed to legal or civil partners and a few other relatives.
It’s crucial to hire an attorney specializing in estate law to ensure your final wishes are handled properly. To avoid any reasons that may render your will invalid, whether for family members or charitable donations, seeking expert guidance is essential.