Ensuring Your Will is Valid

What are the Requirements for a Will to be Valid?

Legal age

Many states require for one to be 18 years and above in order to get a will made, with the exception of states such as Louisiana and Georgia that allow people as young as 14 to 16 years old to create a will. Those in the military who are underage as well as legally emancipated minors are also permitted by many states to have their will created. Special circumstances exist where a person under the age of 18 inherits or earns a huge amount of money, his/her parents or guardians can make a request to the courts to grant the minor permission to have a will made.

The intent of a testamentary

When creating a will, the property owner creating the will needs to explicitly state that the document is a will. In order to ensure that this requirement is adequately fulfilled, the phrase “This is the last will and testament of….” needs to be incorporated in the document. It is imperative to include this phrase so as to avoid confusion or doubt that may arise about the document’s purpose.

For example; if John receives a letter from Mary, signed by her and expressing her desire to make him the beneficiary of her all her belongings, John will not be able to prove that the letter is Mary’s written will when she dies. It is only if Mary stated the letter was to be used as her will (and if all the legal steps of creating a will were followed), simply stating her wishes does not equate to it being a legal will.

The capacity of a testamentary

A person needs to be sane and sober in order create a will that can be considered legal and valid, meaning that the one creating the will needs to be mentally present and alert when drafting a will. This means that the person creating the will needs to have full cognisance of what they are doing pertaining to their property and its beneficiaries. People with mental ailments may be regarded to have legal capacity to sign a will during their lucid moments. Should the mental state of the one signing the will come into question during the signing of the will, then a doctor’s letter that will assure his/her mental capacity may be attached to the will.

If the testator’s mental competence causes the will to be challenged, the person disputing the will has to prove that the testator was not mentally sound during the creation of the will. It is a general assumption by the probate courts that the one creating the will was of sound mental capacity to do so.

Signing of the will

It is important for the one creating the will to sign his/her will. This is to prove without a shadow of doubt that the will is theirs and that they agree with what it contains. If one is unable to sign his/her will for some reason, then it is allowed for a representative to sign on behalf of the creator and in their presence. The signing of the will should be voluntary and not fraudulently done, it should also be done without coercion or duress. For instance, if a threat is made for one to sign a will, that person is under duress or has been coerced. If it is found that the will was signed fraudulently, then the whole document is deemed invalid.

Witnessing

Witnesses for the signing of the will need to be more than on adult, Vermont, for instance requires a minimum of three adults. The witnesses signing the will declare cognisance of the nature of the document (that it is a will) and that the one creating it is mentally competent. Should the will come under contest after the creator dies, then the witnesses will need to be testimony in the court of law about the process of signing the will and whether the requirements were followed.

Witnesses of the will are required by a number of states to be neutral and have no vested interest in benefiting from the will. This is “disinterest” and it is required so as to ensure that the creator is not influenced in their favour. If the witness is found to have vested interest in benefiting from the will, then he/she may not inherit from the will.

In those states that permit beneficiaries to witness, there needs to be another signatory by law in order to guard against coercion. California and Massachusetts will allow a beneficiary to witness provided that two neutral witnesses sign the will as well. Due to the lucrative nature of a will however, it is strongly advised that disinterred witnesses be the only ones signing the will.

A questions such as “do wills have to be notarized?” may arise and the answer to that is no. Notarization of signatures is no not necessary for the will to be considered a legal document. It is only when the will is attached with an affidavit or a sworn statement claiming the will to be legal that notarization is needed.

The various types of wills

The different types of wills come with the specific requirements that the will creator needs to adhere to. Many states require that wills must typed out and signed by the creator and witnesses as previously mentioned, but there are certain specifications that are exclusive to each type of will:

Holographic Wills

These are handwritten wills that are dated and signed by the creator. There are no witnesses needed, though the creator’s handwriting needs to be validated by at least two disinterested witnesses. Aside from it not needing witnesses, a holographic will needs to adhere to the basic requirement for a legal will. This type of will is accepted in half of all the states in the country.

Oral Wills

These types of wills are also known as nuncupative will and are accepted by only a small number of states and for a limited number of reasons. In order for a nuncupative will to be created, there needs to be two witnesses and the creator needs to be in imminent danger of passing away, for example a soldier on duty during a war. Due to these strict restrictions, validating an oral will is very rare.

Video Wills

Considered yet another form of an oral will, a video will is not considered a legal will in states that demand that all wills should be written down. For a video will to be considered legal, states that allow oral wills will require for a video will to follow the same requirements that are levelled on an oral will.

With that out of the way, video wills can also be used to show that the creator is mentally competent and not under any type of coercion and duress while creating the will.

Invalid wills

If any of the requirements that render the will a legal document are not performed, then either one of the following consequences may arise:

The old will comes into use

Should the probate court find that the older will complies with the legal requirements, then it will consider the older will as the prevailing one.

Intestacy​

A state intestate succession law may apply if there is no will in place. The court will therefore identify the property owner’s direct relatives as the beneficiaries. 

If your will is rendered invalid, it will result in your beneficiaries being adversely affected and your last desires being ignored. So in order to avoid such, it is important to follow all the recommended guidelines and legal requirements of creating a will.

What does ‘being of sound mind’ mean?​

Being ‘of sound mind’ means you can understand what you own and to whom you are leaving it.
Just as importantly, a witness to your Will is essentially giving their word that they believe you are of sound mind.