What Makes a Will Invalid

Creating a holographic will

A holographic will is a handwritten will without any witnesses. Some states such as Texas, and Maine (Probate Code Title 18-C § 2-502) consider this to be a valid will, while others do not. If you really want to create this kind of will, do your research to find out whether it is considered valid in your state.

Not having the proper witnesses

Most states require that your will be witnessed by at least two people over age 18 (some require three). In most states, these people must not only see you sign the will, but they also must be able to recognize that you are of sound mind while signing it.

Key witness requirements to keep in mind:

• Avoid interested parties. Beneficiaries and executors should not act as witnesses
• Signatures required. Witnesses must sign the will to confirm they witnessed it
• Notarization. The document may need to be notarized depending on your state

Check your state's laws about witnesses and wills to make sure that you meet all of the requirements when you execute your will.

Insufficient testamentary capacity

One of the most common reasons for challenging a will has to do with the mental competence of the testator, or person making the will. In most states, you must meet a basic competency test to create a valid will. This includes understanding:

• The property you own
• Who your relatives are
• Your relationship to the beneficiaries you have chosen
• What the will says and means

People with dementia or other mental impairments can still create a valid will. If you're worried that someone might try to suggest you didn't have testamentary capacity, you should work with an attorney to provide proper documentation, which might include a physician's report or even a video of yourself.

Not following your state's will provisions

Each state has its own requirements and preferred language that should be used in a will, so do some research and find out what your state's laws require. Generally, your will should include the following:

• A statement that it is your last will and testament
• A clear list of who gets what
• The name of an executor, who will handle the business of probating the will and distributing your property

Basic requirements for a valid will

While specific requirements vary by state, every valid will must meet three fundamental criteria:

1. Testamentary capacity. The testator must be of sound mind and of legal age (typically 18 or older) when creating the will
2. Testamentary intent. The document must clearly express the testator's intention to distribute their property upon death—there should be no ambiguity that this is meant to be a will
3. Proper execution. The will must be signed by the testator and witnessed according to your state's specific requirements

Meeting these three baseline requirements is essential, but it doesn't guarantee your will is bulletproof. Even a will that satisfies all three criteria can still be invalidated if evidence of fraud, undue influence, or other disqualifying factors emerges. Think of these requirements as the foundation—necessary, but not always sufficient on their own.

Fraud or undue influence

If the court finds that fraud or undue influence were involved in the creation of your will, it will be deemed invalid. Common situations could include:

• Undue influence. A nonfamily caregiver forcing the testator to leave them an inheritance
• Fraud. A family member getting the testator to sign a will by pretending it is just a general legal document that needs a signature

If you plan to make bequests that you think your family might have trouble accepting, it is a good idea to work with an attorney to be sure your will is ironclad. You can also have conversations with your family and document them, so that your wishes don't come as a surprise after you pass away.

Who decides if a will is invalid?

The probate court in the county where the deceased person lived has the authority to determine whether a will is valid. This determination typically happens during the probate process, after the testator has passed away and the will is submitted to the court for review.

Interested parties—such as heirs, beneficiaries named in a previous will, or family members who believe they were wrongfully excluded—can file a formal challenge to the will's validity. These challenges must typically be filed within a specific timeframe after the will is admitted to probate, ranging from 30 days to up to two years depending on state law.

When evaluating a challenge, the court examines various types of evidence, including:

• The will document itself and how it was executed
• Testimony from the witnesses who signed the will
• Medical records if testamentary capacity is in question
• Evidence of the testator's relationships and any potential undue influence

The burden of proof generally falls on the person challenging the will. They must provide sufficient evidence to convince the court that something was wrong with how the will was created or signed. The executor named in the will typically has the responsibility to defend its validity during this process.

What can invalidate a will after death?

Most will validity issues don't surface until the testator has passed away and the document enters probate. This is when interested parties first have the opportunity to examine the will and raise objections. Issues such as missing witness signatures, coercion evidence, or doubts about mental capacity often surface during probate.

Common grounds for posthumous challenges include:

• Discovery that the will wasn't properly witnessed or executed
• Medical evidence suggesting the testator lacked capacity when signing
• Testimony from family members or caregivers about undue influence
• Finding a more recent will that supersedes the one submitted to probate

Beneficiaries or heirs who wish to contest a will must typically file their objections within a three to six months after probate begins, depending on the state. Once this period passes, challenging the will becomes significantly more difficult.

To reduce the risk of posthumous disputes, keep your will in a secure but accessible location and make sure your executor knows where to find it. If you create a new will, ensure it's the document that gets discovered first, not an outdated version that no longer reflects your wishes.

How can a will be revoked or replaced?

Unlike the invalidation issues described above, revocation is an intentional act by the testator to cancel a will while they're still alive. It's important to destroy all copies of previous wills when you create a new one. This prevents any confusion where your current will might not be found and an old will could be used in its place. Keep only your most recent, valid will in a secure location. There are three primary ways to revoke a will:

1. Physical destruction. Tearing, burning, shredding, or otherwise destroying the will with the clear intent to revoke it. Accidentally damaging a will doesn't count, the destruction must be deliberate.
2. Creating a new will. Executing a new will that includes language explicitly revoking all prior wills and codicils. This is the most common and cleanest method of revocation.
3. Executing a revocation document. Signing a separate legal document that formally revokes the existing will, even without creating a new one.

For any revocation method to be valid, the testator must have the mental capacity to make that decision. Someone who no longer has testamentary capacity cannot legally revoke their will.

It's also worth noting that certain life events may automatically revoke or modify parts of your will in some states. Marriage, divorce, or the birth of a child can trigger changes to how your will is interpreted, or invalidate certain provisions entirely. If you experience a major life change, review your will to ensure it still reflects your intentions.

You must ensure no one can contest your will and that there is no chance a court could invalidate it. Careful execution of the will, with attention to your state's requirements, can help protect your last wishes.

Brette Sember, J.D., contributed to the article.