Nearly all wills, about 99%, go through probate without an issue. Essentially, this means that it is difficult to successfully challenge a will. Courts view a will as the voice of a testator, and because that person is no longer alive to express his or her wishes, the courts adhere strictly to a will. A will may be challenged by anyone who has an interest to gain from the will. Normally, the most successful challengers are spouses, on the grounds that the testator lacked testamentary capacity or was unduly influenced to write the will a particular way.
If a will is challenged successfully, it may be voided in part or in its entirety. In certain circumstances, a prior provision from a previous will may be reinstated. If the will is voided in it’s entirety, the court may distribute an estate as if a will had never existed. In this instance, the distribution will follow intestacy laws, guided by familial relationships.
Only adults who are 18 years of age or older have the legal capacity to create a will. However, some jurisdictions allow minors who serve in the military or who are married to make a will.
An adult is presumed to have testamentary capacity. When an adult’s testamentary capacity is challenged, it is normally due to an assertion that the testator suffers from some form of senility, dementia, insanity, substance influence, which caused them to lack the mental capacity to form a will. In order to challenge a will based on mental capacity, one must show that the testator at the time of the will’s creation did not understand the consequences of creating said will. A person must understand:
- The extent and value of the property;
- Who he or she must provide for and who the beneficiaries of the will are;
- The disposition he or she is making and what a will means; and
- How these elements relate in order to form a distribution of property.
Fraud, forgery, and undue influence
A will can be challenged by showing that it was created by forgery, fraud, or undue influence. Usually, this involves another person manipulating a person who is vulnerable into leaving all or most of their property to the manipulator. “Undue influence” simply means the person lacked the free will to bargain because of the manipulator.
Another will trumps the one being executed
A more recently created will can trump an outdated will. Generally, there are certain requirements to destroying an older will. If you decide to update or change your will, it is best to show intent to void or destroy any out-dated will that may exist. One can also state in a new will that the new will trumps and/or voids any previous will. Because a court’s main interest is to fulfill the final wishes of a testator, it is vital to date will documents. If there is a valid legal will that is more recent than the will that is being executed, a court will likely follow the newer will. Because each state varies as to the requirements for updated and voided wills, be sure to check the laws of your state.
Sufficient and appropriate witnesses
A will should be signed and dated by the testator and witnessed by at least two witnesses who are over the age of 18 years old. The majority of states require that your witnesses first watch you sign your will together before they themselves sign. Some states permit witnesses to sign at a later time, providing that you inform them that it is your signature on the valid will. However, it is better to do all the signatures together in order to avoid any possible legal challenges. Most states also require that all witnesses not be named as an heir in the will. Also, if a lawyer has drafted your will, he or she may not be used as a witness.
In approximately half of states allow handwritten wills, known as a “holographic” will. Provided that a testator handwrites the entire will, signs and dates it, then the holographic will is legal, regardless of there being witnesses present. However, keep in mind that a holographic will is the easiest will to challenge, due to no witnesses. Therefore, it is best to avoid creating a holographic will.
The Will’s Provisions
Every state varies as to what information must be present in a valid legal will. However, the majority of states require that a will:
- Explicitly state it is the testator’s will;
- Include at least one substantive clause (such as leaving a particular part of property to a named heir); and
- Appoint an executor or executrix to be responsible for carrying out the terms of the will. In some states, the court appoints an executor and enforces the will, even though the will has named an executor.
Although there is no legal requirement that a notary must sign your will, it is best to have your witnesses sign a “self-proving” affidavit. This affidavit, which is a statement sworn by your witnesses in front of a notary, relieves a witness from having to go to probate court and swear to the validity of your will.
Residence of the testator
Provided you have produced a legally valid will consistent with the laws of the state you live in, when you pass away the will is valid in the state in which you die. If you move to another state, make sure to review the new state’s laws regarding valid wills and marital property. More likely than not your will still will be valid, but if the new state in which you reside has different requirements, you will want to consider revising your will to conform to those requirements.