A will is a legal document that lays out how a person’s wealth and assets are to be distributed after a person dies. When a person executes a will prior to death, transfer of the person’s property and wealth is according to the will and does not go through probate court. However, claims and contest to a will can be made through probate court. The law applicable to wills vary by location, so it is important to look to the local law where the person who drafted the will (the testator) lived or executed the will for guidance and procedures.
Elements of a Will
For a will to be valid five elements must be present:
- it must reflect the intention of the person who signed it – there generally is not an issue with intent when a lawyer is used to draft the will; intent is more of an issue with a will is homemade and a lawyer is not used;
- the person making the will must have capacity – capacity is determined by assessing whether the person understood the property they owned and enough about the will making process to understand that they were making a plan to dispose of their property; the person’s knowledge and understanding doesn’t have to be perfect but must be sufficient under the circumstances; if a testator suffers from a mental deficiency at the time the will was executed, the whole will be invalided; if a testator executed any portion of the will under an insane delusion, only the portion of the will affected by the delusion will be invalidated;
- there must not have been undue influence at the time the will was executed – generally a relative brings an undue influence claim when they believe that someone got an unfair share of of estate due to the person’s participation in preparation of the will; undue influence includes psychological domination such that the will appeals to reflect what influencer wants rather than what is believed the testator wants; and
- there must not have been fraud when the will was executed – a will be invalidated in its entirety if a testator was willfully deceived by any beneficiary as to the nature, contents, or any material facts that were material to drafting a will and disposing of their property.
Statute of Frauds
There is a doctrine called the “Statute of Frauds” which also requires that for a will to be valid the document must be (i) in writing which can be handwritten, typed, or printed from a word processor; (ii) signed with the intent to validate the will; (iii) signed by the testator or someone on behalf of the testator in the testator’s presence; and (iv) attested by two witnesses in the testator’s presence.
Holographic Wills
Holographic wills are informal wills and states have different requirements that serve the purpose of trying to assure the genuineness of a document as a will. In general, holographic wills are used when a testator believes formal procedures for drafting a will is not necessary or when formal procedures are not possible. Some states require that the document be entirely in the testator’s handwriting and be dated. Once a court validates a writing as a will, the document will carry the same weight as a formally drafted will.
Revocation of a Will
A testator can revoke a will by adopting a new will with the intent that the new one replace the earlier one or by damaging the earlier will with the intent that it be revoked. A testator can also revoke a part of a will, however this can cause inconsistency in the will that will require a determination as to whether the will was revoked completely or partially. Wills can also be revoked by operation of the law, as can be the case when a testator marries or gets a divorce but does not amend their will. Although a will can be revoked, it can also be revived but state law can be used to determine whether the will was revoked in the first place and what the affect of revival is, if any.