Requirements for creation

Requirements for creation

Any person over the age of majority and of sound mind (having appropriate mental capacity) can draft his or her own will with or without the aid of a lawyer. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:

  • The testator must clearly identify himself or herself as the maker of the will, and that a will is being made; this is commonly called “publication” of the will, and is typically satisfied by the words “last will and testament” on the face of the document.
  • The testator should declare that he or she revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.
  • The testator may demonstrate that he or she has the capacity to dispose of his or her property (“sound mind”), and does so freely and willingly.
  • The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses, these are called “supernumerary” witnesses, if there is a question as to an interested-party conflict. Some jurisdictions, notably Pennsylvania, have long abolished any requirement for witnesses. In the United States, Louisiana requires both attestation by two witnesses as well as notarization by a notary public. “Holographic” or handwritten wills generally require no witnesses to be valid.
  • If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either (i) disallowing them to receive under the will, or (ii) invalidating their status as a witness. In a growing number of states in the United States, however, an interested party is only an improper witness as to the clauses that benefit him or her (for instance, in Illinois).
  • The testator’s signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator’s intentions.
  • One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person’s death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

Some jurisdictions recognize a holographic will, made out entirely in the testator’s own hand, or in some modern formulations, with material provisions in the testator’s hand. The distinctive feature of a holographic will is less that it is handwritten by the testator and often that it need not be witnessed. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman’s will. A minority of jurisdictions even recognize the validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used.

A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator’s estate. In the United States, children may be disinherited by a parent’s will, except in Louisiana, where a minimum share is guaranteed to surviving children. Many civil law countries follow a similar rule. In England and Wales from 1933 to 1975, a will could disinherit a spouse but since 1975 such an attempt can be defeated by a court order if it leaves the surviving spouse (or other entitled dependent) without reasonable financial provision.

Types of wills generally include:

  • nuncupative (non-culpatory) – oral or dictated; often limited to sailors or military personnel
  • holographic– written in the hand of the testator; in many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.
  • self-proved– in solemn form with affidavits of subscribing witnesses to avoid probate
  • notarial – will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States)
  • mystic– sealed until death
  • serviceman’s will – will of person in active-duty military service and usually lacking certain formalities, particularly under English law
  • reciprocal/mirror/mutual/husband and wife wills – wills made by two or more parties (typically spouses) that make similar or identical provisions in favor of each other
  • unsolemn will – will in which the executor is unnamed
  • will in solemn form – signed by testator and witnesses

Probate

After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfy the legal requirements, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a “proof of witness” affidavit. In some jurisdictions, however, statutes may provide requirements for a “self-proving” will (must be met during the execution of the will), in which case witness testimony may be forgone during probate. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.

It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger’s will did not contain this, which wound up costing his estate thousands. This is not a consideration under English law, which provides that all such expenses will fall on the estate in any case.

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