Creating a last will and testament is a smart way to make sure that your loved ones receive your assets with a minimum of fuss and effort after your death. But all too often, people go to great pains to write a will and put other estate-planning documents in place, only to have a court invalidate them. To avoid those common mistakes, you have to know which pitfalls to look out for. Here are some of the key factors to consider to make sure a judge won't declare your will invalid.
Photo: Brian Turner.
1. If you don't have unbiased witnesses when you sign your will.
For a will to be valid in most situations, you need to sign the will in the presence of witnesses. Those witnesses will have the responsibility of testifying in court that the person acknowledged that he or she was signing a last will and testament. Typically, witnesses might also be called to say whether the person signing the will seemed to have the mental capacity to sign a will and that the person wasn't under any sort of pressure that would qualify as undue influence in the eyes of the court.
It's important that the witnesses not be among those receiving assets from the will-maker's estate, as the appearance of a conflict of interest could lead a court to choose not to accept that a person as a qualifying witness. Without witnesses, it can be hard or even impossible to convince a judge that a proposed will is valid, especially if some family members or would-be heirs contest the submitted document's validity.
2. If you disinherit family members without being clear.
Estate-planning law tends to lean in favor of treating family members equally. As a result, if you want to favor one child over another or leave out a certain family member entirely, you have to be careful to be extremely clear about your intentions while not giving that person a basis under which to argue their case.
Specifically, many attorneys recommend that you at least acknowledge the existence of all of your natural heirs, including a spouse, children, or other family members who would be in line to receive your assets under state law if you died without a will. You can then explicitly say that the will intentionally makes no provisions for the person you want not to receive assets. That doesn't eliminate the risk that the person you leave out of the will won't fight in court, but it improves the odds that a will contest won't destroy your careful planning.
3. If you are determined not to have the mental capacity to sign a will.
One basis under which people can contest a will is if the person signing the will didn't have the necessary mental capacity to execute an estate-planning document. What that generally means is that when you sign a will, you have to understand what property you own, who your closest family members are, the fact that you are leaving their property to your chosen beneficiaries after you die, and your overall plan for who's to receive what parts of your overall estate.
It's important to understand that even if you have a form of mental illness, you can still execute a valid will as long as you meet the requirements listed here. Although medical records can be supporting evidence of incapacity, they're not the only acceptable evidence, and witnesses can rebut written records to establish the capacity to make a will. All other things being equal, though, it's always best to execute a will before there's any question of capacity.
Courts always have the right to review your will for validity. But if you keep these three ideas in mind, you'll have a better chance of having your wishes respected after your death.
