Wills: Validity Requirements, Modification, Revocation, and Contests Chapter 4

Requirements for Validity Testamentary Intent Testamentary Capacity Written Document Signed by Testator or Testatrix Witnesses

Testamentary Intent The testator must intend the instrument to operate as his/her last will Usually expressed in the document

Capacity Sound Mind The testator is aware of natural objects of the testator’s bounty The testator may have insane delusions, but the will was executed during a lucid interval

Written Document The will must be handwritten or typed Most oral wills are not valid

Signature The will must be signed by its maker The will can be signed by a mark The testator must have intent to sign and make the will

Witnesses Attest to the testator’s signature Sign the will Must be capable and competent to act Must be present at the publication that this is the testator’s will

Codicil An amendment to a will Codicil versus a will A codicil has the same requirements as a will A codicil changes the terms of the will

Revocation of the Will A will is ambulatory until the testator’s death The will is revocable and subject to change until the testator’s death Revocation by physical act The testator tears, burns, or otherwise destroys the will or crosses out parts of it The testator must have intent to revoke

Operation of Law Rights that pass to a person by the application of the established rules of law, without the act, knowledge, or cooperation of the person For example, by marriage or divorce Will can be revoked wholly or partially by operation of law

Subsequent Writing A new will, which is recommended A codicil, which has become almost obsolete Both revoke or change the terms of a will

Will Contests If a will is invalid, then distribution of assets is determined by intestacy laws Grounds for will contests The will was not properly executed Notice of probate was not given to interested parties The testator was induced by fraud to write or change the will The testator lacked testamentary capacity The will has been revoked

In Terrorem Clause A clause in a will stating that if a beneficiary of the will objects to probate or challenges the will and its distributions, this results in forfeiture of all benefits of the will