Seniors and Estate Planning – 4 Essential Elements of a Valid Will
Last week I embarked upon a three-part series on wills, kicking off with six reasons why you should want one. Today, I will be sharing four elements that make up a valid will and next week, Lisa Nelsen, an attorney with the Hegwood Law Group will share why you should have a lawyer help you.
Writing a valid will requires more than “being of sound mind.” There are several crucial elements that must be present for a will to be legitimate, and they must all be done correctly. “TV law” has little basis in reality. You don’t want to be careless in how your estate is allocated. After all, they’re your assets and everyone, especially seniors, should have the say-so in how they’re distributed.
- Intent – According to USLegalcom, “testamentary intent refers to a testator’s intention with respect to a particular instrument that functions as his/her last will. Testamentary intent is required for a will to be valid. The existence of testamentary intent is not a matter of inference, but is expressed so that no mistake is made as to the existence of that intention.”
- Capacity – With regard to estate law, Legalmatchcom states “testamentary capacity” is a legal term is used to describe a person’s legal and mental ability to make a valid will. The idea is that the person making the will (the “testator”) must have sound mind and judgment to understand that they are making a will. They must also be able to understand what property they are including in their will.”
- Free of fraud, duress, and undue influence – Julie Garber writing for The Balance states that the testator cannot be under any duress or undue influence from another party. Furthermore, he or she cannot be fraudulently led to sign a document mistakenly believed to be something else.
- Signature and witnesses – Mary Randolph, J.D., an expert in wills, probate and estate planning, states that most states require the maker’s signature and those of two witnesses, each being at least 18.
I can’t emphasize enough the importance of having a will. It takes away ambiguity and allocates your assets the way you want. That said, there is room for human error and the courts have prepared for such mistakes. According to Law.FreeAdvice.com, courts will look at four things: plain meaning – words will not be added or subtracted; erroneous exclusion – words mistakenly omitted cannot be added; mistaken belief – innocent errors will not invalidate a will. (For example, believing a son to be dead does not invalidate the will and the son may inherit); misdescription – courts regularly will not add words to bring about the deceased’s clear intent, but they are inclined to omit words that are clear mistakes. In weighing all these factors, the courts are inclined to go to great lengths to preserve the intent of the will.
Estate planning and writing a will are not matters to be taken lightly. True, you can, in theory, write a will on a paper napkin, but you will probably want witnesses. Even so, it would be a better idea to seek the help of a professional, someone who knows the laws of your state and can help make your intent clear. I hope you will join me next week when we hear from Lisa Nelsen, an attorney with the Hegwood Law Group as she shares how she counsels clients in these matters.