What Makes a Will Invalid?
A court may determine that a will is invalid in two scenarios. The first is that the person creating the will (testator) failed to comply with a legal requirement pertaining to the formation of the will. For example, a will is invalid if any of the following apply.
The Will Is Not in Writing
In most states, a will must be in writing to have legal effect. However, what constitutes “in writing” can vary from state to state. For example, some states permit an electronic will while others do not. The same goes for holographic or handwritten wills. Often, states will honor wills created in other states, provided the will was valid in the original state. However, this can present challenges, as it essentially puts a court in the position of applying another state’s laws.
The Will Is Not Signed
For a will to be valid, the person creating the will must either sign the document themselves or have someone sign it in their name on their behalf. Of course, wills that the testator did not sign themselves have an increased chance of being contested by someone who feels the will did not represent the interests of the testator.
The Will Was Not Witnessed
Every state has its own witness requirements when it comes to creating a valid will. Often, states require two people (who do not benefit from the will) to witness the testator sign the will. Additionally, some states require the testator to sign before a notary.
The Will Has Been Replaced by a More Recent Will
As soon as a person creates a new will, the old will becomes invalid. This is one reason why it is important to keep family members apprised of the location of all estate planning documents.
The Grantor Lacked Legal Capacity
To create a valid will, the testator must have what is called “testamentary capacity.” Testamentary capacity refers to a person’s ability to:
- Understand what property they own,
- Understand who they want to leave their assets to, and
- Comprehend the legal effect of executing the will.
In most states, only those over the age of 18 can have testamentary capacity unless they are married, in the military, or emancipated.
Someone Exercised Unlawful Control Over the Grantor
Undue influence is a legal term describing one person’s unlawful exercise of power or influence over another person. If someone exercised undue influence over the testator in creating their will, it is an invalid will. But proving undue influence can be difficult. An experienced probate lawyer can assist individuals who believe a loved one was subject to undue influence.
If a court determines that a will is invalid, the decedent’s assets will not be distributed according to the terms of that will. If the testator had a previous will, the court could rely on that document. However, if a testator’s only will is invalidated, their assets will be distributed according to the state’s intestacy laws.
What Makes a Trust Invalid?
By and large, the legal requirements of a trust are similar to those of a will. However, while the general legal principles are the same, the specific requirements for creating a valid trust are different. As a general rule, a trust is invalid in any of the following circumstances:
- The grantor did not follow the legal formalities necessary to create the trust document;
- The trust was created or modified as a result of forgery or another type of fraud;
- The grantor was not legally competent at the time they created the trust; or
- The trust was created as a result of undue influence.
If a court determines that a trust is invalid, the assets purported to belong to the trust will not be distributed according to the terms of the invalid trust. If a previous trust existed, the court could give that document legal effect. However, if there is not a previous trust, the assets will pass to heirs through the state’s intestacy laws.
State Laws Differ, So It’s Best to Consult an Experienced Estate Plan Attorney
Each state is responsible for creating its own estate planning laws. Therefore, what makes a will or trust invalid in one state may differ from the laws of another state. Those looking to create a valid and effective will—as well as those seeking to challenge the validity of a will—should consult with a local estate plan attorney. Estate plan attorneys have the most up-to-date information related to the legal requirements for valid trusts and wills. Additionally, an attorney can help those who are concerned about a loved one’s invalid will or invalid trust.
Contact an Experienced Will and Trust Lawyer Today
If you have questions about what makes a will or trust invalid, the knowledgeable will & trust lawyer at Beller Law, PL can help. We have more than 25 years of experience helping individuals and families navigate the complexities of trust and estate law. Our firm understands your family’s concerns and is prepared to address them in an efficient and effective manner. We are immediately available to meet with you and your family to identify your options and help you determine the best course of action. To learn more and to schedule an initial consultation with our Jacksonville, FL estate planning lawyer, give us a call. You can also reach us through our online form, and one of our team members will contact you soon.