Each state has specific requirements that a will must meet in order to be legally enforceable. Some of the most common requirements in most states are: Most courts don`t care whether the witnesses who testify or the testator sign first. Of paramount importance, the execution ceremony is part of a unique and ongoing transaction. See, for example, Waldrep v. Goodwin, 195 p.E.2d 432 (Ga. 1973). Although the rules for drawing up a will vary from state to state, certain formalities must be completed. In general, a will is only valid if it meets the following requirements. In contrast, self-proved wills (wills that are admitted to succession on the basis of the recitals of the affidavit, without the witnesses having to testify themselves) require the additional step of the testator and witnesses signing an affidavit, usually on a separate sheet of paper, before a notary. The affidavit contains all the elements of proper execution and serves as a substitute for the live testimony of witnesses at the public hearing. After the death of the testator, the will may be admitted to the succession without the testimony of the signatory witnesses.
See EPG § 2-504. The competency standard is accompanied by a minimum age, which is usually 18 years. See Cal. Prob. Code § 6100; Idaho Code § 15-2-501; Utah Code § 75-2-501. The modern view is that everything that appears before signing takes effect; But the provisions that follow the signature are null and void (even if they existed at the time the will was written). There is an exception to this point of view where the provisions subsequent to signature are so essential that their deletion would prejudice the testator`s testamentary plan. In such a case, the entire will is null and void. See N.Y. Est. Powers & Trust Law § 3-2.1(a)(1)(a). If the provisions have been added after the execution of the will, they will of course not be respected in all jurisdictions.
Each state establishes its own procedures that must be followed for a will to be considered legally binding. These must be followed by the testator – the person who drafts the will – the witnesses and the legal representatives who act as advisors in the process. So let`s go back to the questions that were asked at the very beginning. A person who writes their wishes on a napkin may well have written a valid will if it meets the requirements of a holograph will. A do-it-yourself will – partly handwritten and partly typed – may be valid if it meets the higher standard of all the formalities of a fully typed will. What about the “Will” email? The email is not “signed”, so the omission immediately calls into question the validity of the document (but what about an electronic signature?). If the email is not “attested,” this omission also calls into question the validity of the email as a will – that is, how do we really know that the now deceased person actually wrote and sent the email? In addition to the signing of the will by the testator, it must also be signed by witnesses. Like the testator, witnesses must have certain minimum qualifications, otherwise their certificates may be legally insufficient to validate the will.
In particular, witnesses must be competent – they must be mature and spiritual enough to understand and appreciate the nature of the act they are witnesses so that witnesses can testify in court on these matters if necessary. See, for example: In re Estate of Edwards, 520 pp.2d 1370 (Miss. 1988). There may also be an error in the inducement if a testator is wrong about an essential fact and therefore contains no provision in the will. Unlike instigation fraud, an error in the application does not invalidate the will. Such innocent errors do not affect the validity of the will. In fact, no compensation is awarded to the injured party. See, for example, Bowerman v. Burrris, 197 p.w.
490 (Tenn. 1917). The laws of other states provide for “nuncupative” wills, which are pronounced aloud in front of at least two witnesses. Also called “deathbed” wills, they are generally only recognized in certain circumstances, such as in the event of imminent death. Witnesses are usually responsible for drafting the will and presenting it to probate court within a relatively short period of time after death. If the signature of a notary is missing from the will, the family must prove the legitimacy of the will – which may take some time depending on the circumstances. Another bleak view of the practice of writing a will under which you are a beneficiary comes from Texas. In particular, Texas law invalidates a testamentary gift to the attorney who drafted the will, his or her spouse, or employee, unless one of those parties was related to the testator.
See Tex. Prob. Code § 58B. New Jersey accepts handwritten wills, whether attested or not, provided it can be clearly demonstrated that the document was intended to be a will of the deceased. The document must also be clearly recognizable as written by the deceased`s own handwriting. Some states allow “holograph” wills that are entirely handwritten by the testator. “Complete” is the key word. Wills printed in handwriting will probably not be recognized as valid, or at least the handwritten parts will be ignored.