Valid Will – What’s Required?

In drafting a will, an estate planner has discretion to include a wide variety of language to ensure his client’s intentions are accurately documented. The rules of executing a will, on the other hand, mandate a planner and his client satisfy certain requirements to assure a court will later recognize its validity.

First, a testator must have the required level of capacity at the time of execution. More specifically, he must be at least 18 years of age and the process must be free of fraud and undue influence (most often by family members or other potential beneficiaries). Additionally, the testator must have sound mental capacity, provable by showing he (a) knew the nature and extent of his property, (b) knew who his family members were, and (c) understood his will’s basic plan for disposing of his property. Courts may invalidate a will if they find a testator suffered from an insane delusion at the time of execution.

Secondly, a will must be executed with certain formalities. The will must be in writing and signed by the testator (or in his name by a designated person acting by the testator’s conscious direction). This signing must be witnessed by at least two competent witnesses to demonstrate the testator intended to make the will provisions effective. For obvious reasons, it is best practice to procure witnesses who are neither a beneficiary nor a spouse of the testator.

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