Will contests in the US are not uncommon. Generally, when you create a Will and designate who gets your assets, there is someone out there who might benefit from invalidating your Will, especially if you have excluded one of your children, made an unequal division, or given a large portion to someone who is not your legal child.
After you die, your Will gets presented to a judge. It is the judge’s job to determine whether your last will and testament is valid.
Each state has its own legal requirements for your Will to be valid. In this article, I will use Illinois’ rules as examples, but you should review your own state’s rules for a valid Will.
Key Points
- Signature Requirements: Ensure every page of your Will is signed or initialed.
- Notarization: Know if your state requires notarization and follow the process strictly.
- Witness Competency: Choose witnesses who are competent, not beneficiaries, and present during signing.
- Original Will: Keep the original Will safe; photocopies are not valid.
- Attestation Clause: Include an attestation clause signed by witnesses and notary.
Important Definitions
- Testator: The person creating the Will.
- Notary: An official authorized to authenticate legal documents.
- Attestation Clause: A clause confirming the witnesses saw the Testator sign the Will.
- Competent Witness: A sane adult who can see the Testator sign and can sign their own name.
Common Mistakes That Will Ensure Your Last Will is Invalid
1. Not Signing All the Pages of the Will
In many states, there is a requirement that the Testator (the person creating the Will) must sign or initial each page. Missing a page or forgetting to sign a single page could invalidate the entire Will. It is crucial to understand the legal requirements in your state so you don’t unintentionally invalidate your Will from the start. This is especially important if you are using an online template or if you created your own Will.
2. It Is Not Notarized
Not all states require your Will to be notarized, but many do. If your state requires a notary and you don’t have it, then your Will is invalid. To get a Will notarized, you need to sign the Will in front of the Notary as well as your two witnesses. This means you need to gather all those people in one place, which can be difficult.
3. Not Having Two Competent Witnesses Who Physically Witnessed the Signing of the Will
A competent witness must be sane, able to physically see you sign (cannot be blind), over the age of 18 (the minimum age requirement may vary by state), and able to sign their own name. Importantly, don’t use a family member or an heir named in the Will as a witness. While this won’t invalidate the Will, in some states if the witness is named in the Will (meaning they benefit from the Will by receiving an inheritance), then they will be excluded from the Will as if they were not named as an heir. In other states, the share given to them in the Will will be reduced to a lesser amount dictated by that state’s statutes. This also applies if the spouse of a named heir is used as a witness, resulting in the heir either receiving nothing or receiving a reduced amount.
4. Notary and Witness Were Not Physically Present When the Will Was Signed
Both witnesses and the notary must be physically present when the Testator signs the Will. When signing a contract, it is common for the signers to be in different locations. Often one party signs the contract and then sends the document to the other party for signature. This is strictly prohibited when it comes to Wills.
Additionally, it is not enough that the Testator, witnesses, and notary all be in the same place at the same time; they must also physically see each other sign the documents. There have been cases where a witness was across the room and didn’t actually see the Testator sign, resulting in the Will being invalidated.
5. The Original Will Is Lost
In most states, only the original signed Will is valid. Photocopies are not valid. If the original Will cannot be found, there is a legal presumption that the Testator destroyed the Will with the intent to revoke it.
It is very common for a person to make photocopies of their Will and give those copies to their children or heirs. But then when the person passes away, no one can find the original. It doesn’t matter if every member of the family has a photocopy of the original; if they don’t have the original, then the Will is not valid.
Most attorneys will make two originals when you sign documents in their office. If you aren’t using an attorney, you should also make at least two original copies. You should keep one in a safe place with your other estate documents (and make sure your family members know where to find it) and give the other copy to your chosen executor to keep.
6. Attestation Clause
The attestation clause is a clause in the Will that confirms that the witnesses saw the Testator sign the Will in all required locations, and that the Testator confirmed the Will was theirs.
In the presence of the Testator, and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar:
“In our presence, the Testator has declared or signified that this instrument is their testament and has signed it at the end and on each separate page, and in the presence of the Testator and each other, we hereunto subscribe our names this [day] of [month], [year].”
These requirements are very important and “close enough” is not good enough. Failure to strictly meet any of these requirements means your Will will be invalidated. Make sure you fully understand the requirements for your state and don’t be afraid to talk to an experienced estate planning attorney – it’s their job to get this right.
Frequently Asked Questions (FAQs)
Q: What happens if my Will is invalid? A: If your Will is invalid, your estate will be distributed according to your state’s intestacy laws, which may not align with your wishes.
Q: Can I use an online Will template? A: While you can use an online template, it’s crucial to ensure it meets your state’s legal requirements. Consulting an attorney is recommended to avoid mistakes.
Q: How often should I update my Will? A: You should review and update your Will every few years or after major life events, such as marriage, divorce, the birth of a child, or significant changes in your assets.
Q: What if I lose my original Will? A: If the original Will is lost, it is presumed to be revoked. It’s important to store your original Will in a safe place and inform your executor of its location.
Q: Can my Will be contested? A: Yes, your Will can be contested on various grounds such as undue influence, lack of testamentary capacity, or improper execution. Ensuring your Will is valid can help prevent successful challenges.
Take Action Now
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Contact Information:
- Phone: (618) 354-0302
- Email: jed@supernuslaw.com
- Website: Supernus Law Website
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This post is for informational purposes only and is not intended as legal advice. Please do not act or refrain from acting based on anything you read on this site. You should always seek competent legal counsel before taking any legal action. Using this site or communicating with the Supernus Business & Law Center, LLC through this site does not form an attorney/client relationship.
