How to Ensure Your Will Is Not Invalid

There's a reason it's called your last will and testament. It's your final message for your family and friends to hear. Burdun Iliya/Shutterstock

Whether it’s the family home or a multimillion-dollar estate, you want to ensure your will correctly designate who inherits what asset. There’s a reason it’s called your last will and testament. It’s your final message for your family and friends to hear.

But what if your will doesn’t correctly say what you want? It could leave the door open for it to be contested or, worse, declared invalid. What makes a will invalid?

Creating a Holographic Will Could Be Invalid

A holographic will is handwritten and doesn’t have any witness signatures. Although some states consider this valid, many states do not. In those states, the handwritten will would be declared invalid.

It’s interesting to note that in some states, a verbal will, under specified circumstances, is considered valid.

Check your state laws to ensure that your holographic will is acceptable.

Failing to Destroy Previous Wills

Things change, marriages occur, and babies are born. When this happens, many people want to change their wills.

If you don’t destroy previous wills, there could be some confusion. But if your new will has specific language, you should be fine. That language is:

“I revoke all previously executed wills.”

The best course of action is to destroy previous wills.

Lack of Testamentary Capacity

The testator must be of “sound mind” to sign a will, but in many states, the level of that is low. This can be confusing because the higher level of capacity required to sign a standard contract is high in many states.

In most states, capacity demands that the testator knows at least two concepts.

First, that the testator knows the extent of their bounty (what they own), and second, they must understand the natural objects of their bounty (that is, the heirs and close relatives).

But when the testator has passed, the burden of proving capacity is on the challenger. They must provide clear and convincing evidence that the testator was not of sound mind. Evidence must be shown of:

• senility
• dementia
• insanity
• mental illness
• cognitive declining memory
• or something similar

Proof may come in the form of medical records or worn testimonies from healthcare providers, family caretakers, etc. These people must swear they witnessed the testator’s condition during the time in question.

Failing to Notarize or Sign

Some states require that the signatures on the will be notarized at the time of signing. You cannot sign and then have it notarized later, as that will invalidate the will, although most notaries won’t do that anyway.

Other states require the will to be signed multiple times at the time of signing. Checking with your state or competent attorney is wise to ensure you’re signing the will correctly.

Not Having Proper Witnesses

Typically, states require two or three people to witness the signing of a will. They must all be over 18. The witnesses must not only see you signing the will but also must state that you’re of sound mind at that time. You should have a beneficiary or executor as a witness to the signing of the will.

The witnesses sign that that they have witnessed you signing the will.

Undue Influence or Fraud on Testator

Undue influence is another way a will can be invalidated. This is when a person influences or pressures the testator to change their will for the influencer’s benefit. It could be tied to the testator’s lack of capacity.

To do this, the influencer may use threats of physical force or isolation to sway the testator.

Once more, if challenged on these grounds, the challenger must prove clear and convincing evidence of this.

Fraud occurs if someone misleads the descendant about the will’s contents or if they are led to believe they are signing a document that is not their will.

Not Following State’s Provisions

Every state requires specific language that must be used in the will. You should know your state’s laws or contact a well-versed attorney who specializes in estate law.

The primary language for any state is:

• a statement that this is your last will and testament
• a clear list of who inherits
• naming of an executor

Typically, if you have your will written in one state but move to another, the will will be accepted. However, it must have been written following the same laws of the first state to be valid in your new state.

What Happens When a Will Is Declared Invalid

If a will is declared invalid, the assets will be distributed based on the previous will. If there isn’t a previous will, then assets will be distributed according to the testacy rules. In other words, it will be treated as if the decedent died without a will.

That means assets will be distributed only to legal or civil partners and some other relatives.

Work With a Competent Attorney

Using an attorney specializing in estate law is crucial so your last requests are handled properly. If you have loved ones or a charity you want your assets to go to, avoid any reason your will could be invalidated.

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