Is It a Valid Will?

There are only a few requirements for a will to be valid in terms of its drafting. It must be in writing and signed by the testator at the end. Technically, a notary and/or witnesses are not required, though certainly useful for purposes of probate as well as potential litigation on its validity. The bigger concerns surround the contents of the will. Any aggrieved party can contest the will for a number of reasons. Two of the more common grounds for a will contest include indue influence or lack of capacity. Undue influence covers a variety of situations where the primary allegation is the contents of the will do not reflect the testator’s true intent. This could be because of direct undue influence, i.e. physically forcing the testator to execute a will. It can also be a result of indirect influence. Indirect influence may be asserted if the testator was shown to have persistent confusion or forgetfulness, a party with a close relationship is involved, and the end result is a lopsided will to the substantial benefit of the party with close relationship.

 

Lack of capacity can be asserted wherein it is alleged the testator did not have the mental awareness to execute the document. By law, a testator must be of sound mind to make a will. This has been construed by case law to require they understand who their intended beneficiaries are, what property they have to pass to the beneficiaries, and how they will divide the property among the beneficiaries. There is a presumption of capacity but it can be overcome. To overcome the presumption there must be clear and convincing evidence to demonstrate lack of capacity at the time of signing. Witnesses at the time of signing can offer testimony with regard to the state of the testator at the time with respect to capacity. Consult with an estate attorney if you have concerns about the validity of a will to discuss your options.