March 19

Will Formalities


What does a proper will contain?

A Will, of course, is a legally binding document that identifies who should inherit a person’s property after they die. Of course, when making your Will, you want to ensure it contains all of the proper aspects. It’s not like you can exactly go back and fix any mistakes you made after the fact.

There are four main requirements for a valid Will: The Will must be executed by a person over the age of 18 with testamentary capacity (they must know “the nature and object of their bounty,” as we used to hear it described in law school), the Will must have been executed free of fraud, duress, undue influence or mistake, and signed by two witnesses and a Notary (none of whom should be named as a fiduciary or beneficiary of the Will).

Testamentary intent involves the testator having subjectively intended that the document in question constitutes his or her Will at the time it was executed. Ordinarily, the opening recital, “I, Jane Doe, do hereby declare this instrument to be my Last Will and Testament . . .” will suffice. The testator must know the nature of the act and understand the disposition of the assets called for by the will. In addition to these requirements, most states (going beyond NJ for a moment here) require that the Will have at least one provision that disposes of property or a provision that appoints a guardian for minor children, and a clause appointing an executor.

It is important to understand how one mistake can make a will invalid. For example, let’s say you decide to prepare your Will weeks before having surgery. Your Will leaves all of your property to your favorite nephew. You purposely want to exclude your sister and her family from the will because you don’t get along. You had some complications from the surgery and end up in a coma, but you didn’t get around to signing your Will yet. Your nephew comes to visit while you’re in the coma, and uses your hand to sign the document. Shortly thereafter, you pass away and your nephew tries to probate the Will. In order for the testator’s signature to be valid, it must be done as a volitional act by the testator, or at the testator’s direction. Since you were in a coma when the will was signed, you did not voluntarily sign the Will. Therefore, the will is not valid. Generally the Will won’t be probated right away if there is a sense that the Will brings with it “doubt, difficulty, or dispute.” Those three D’s mean big legal fees.

You may be asking yourself if you really need a lawyer to create a valid Will. In theory the answer is no, state laws do not require the assistance of a lawyer when making a Will. However, it is highly recommended to have the help of a lawyer, because often you will not be able to recognize a mistake until it is too late. Give me a call if you have any questions.


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