What Makes a Will Invalid

What Makes a Will Invalid

by Brette Sember, J.D., April 2020

Creating a will allows you to decide what happens to all of your belongings and assets after you're gone. In that respect, the document acts as your last message to your loved ones, which means you want to make sure that it will be upheld so that your wishes are carried out.

However, some wills aren't as bulletproof as one would like. So, it's important to make sure your will is beyond dispute. Here are some common mistakes that could invalidate your will.

What Could Invalidate My Will

1. Creating a Holographic Will

A holographic will is a handwritten will without any witnesses. Some states 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.

2. Not Having the Proper Witnesses

Most states require that your will be witnessed by two or three people over age 18. 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.

It's best to avoid having any beneficiaries or the executor of the will act as witnesses. The witnesses need to sign the will to indicate they witnessed it. The document may then need to be notarized. Check your state's laws about witnesses and wills to make sure that you meet all of the requirements when you execute your will.

3. Not Destroying Previous Wills

If you have previous wills, it's important that you destroy all copies of them when you create your new one. You want to avoid any possible situation where your current will is not found and an old will is used in its place.

4. 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.

5. 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

6. 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:

  • A nonfamily caregiver forcing the testator to leave them an inheritance
  • 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.

Because your will is your final act, you want to be sure no one can contest it 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.