When you take the time to execute a last will and testament, it’s because you want to ensure your hard-earned estate falls into the right hands. A valid will safeguards the future of those you love most, but an invalid will can leave them unprotected after your death.
What requirements must a will meet in order to be deemed valid?[1]
- The will must clearly establish testamentary intent. In other words, it must be clear that the instrument in question is intended to be a last will and testament. This is usually established in the opening recital:
I, John Doe, a resident of Ventura County within the State of California, make, publish and declare this to be my Last Will and Testament, thereby revoking any and all previous Wills and Codicils made by me.
- The testator must possess testamentary capacity. Testamentary capacity refers to the testator’s ability to execute a will. While the exact definition of testamentary capacity may vary from state to state, most have an age requirement and a requirement regarding mental capacity. In California, for example, you must be at least 18 years old and mentally competent to execute a will.
- The will must be procured without fraud, duress, or undue influence and executed without error. If it can be shown that deceit or duress was used to compel the testator to execute a will, the will is void. Likewise, if the execution of the will is fraudulent, it is invalid. A mistake in the execution of the will may also invalidate it.
- The will must be duly executed according to specified formalities. A will must be signed freely by the testator and by at least two impartial adult witnesses who do not stand to gain from the will. In California, wills may be signed by an interested party; however, two disinterested parties must also sign for the will to be valid.
The will’s form is also dictated by formalities. In California, for example, a will must be handwritten. This is called a holographic will.
What happens if you fail to meet the requirements established in your state when executing your will?
If you don’t meet the requirements of your state when drawing up your will, the court will determine what happens to your estate. It may pass under intestacy laws, giving your property to your closest living relatives without regard to your intention. If you wrote a previous will and it can be located, your estate may pass to the beneficiaries of that will.
To be sure your estate passes into the right hands, hire an attorney to prepare your will for you. If you prefer to draw up your own, ask an attorney to review it for you. Call the Law Offices of Jeffrey Lohman to discuss your last will and testament.