The vast majority of estate planning happens without incident, but what if you suspect that your loved one was incapable of making legal decisions about their estate due to age or illness? Read on to learn about what makes a will valid or invalid.
What is a will?
A will is a document that outlines how an individual wants their property to be distributed after they die. A will is a legally binding document that is probated by the court upon the death of an individual. A will appoints an executor, which is a person who is appointed to carry out the terms of the will. It is important to create a will with a licensed attorney to ensure that the will is valid and to avoid delays during probate.
What makes a will valid or invalid?
In New York, a valid will must be in writing, signed by the testator and two witnesses, and declared by the testator to be his or her last will and testament. The two witnesses signing and adding their addresses under their signature must be “disinterested parties,” meaning they can’t be beneficiaries listed in the will. Another person may sign on behalf of the testator in the testator’s presence if needed.
In order for a will to be valid, the testator must also be of legal age (which is 18 in the state of New York), and must have testamentary capacity. If written under duress or without the person’s full understanding of what they are signing, then the will is not valid.
Contesting an invalid will
To contest a will in court, you may prove a lack of testamentary capacity due to mental impairment, fraud, or undue influence. There are a few ways you can contest a will if you find out that the testator did not have the capacity to make legal decisions. Contesting the will takes place after the person has passed and the will is submitted for probate. However, there are nuances in the law that can be argued by the proponents of a will. For example, a testator may still have the mental capacity to execute a will if they experienced a “lucid interval” during the execution of the will. In other words, since testamentary capacity is determined at the time of will execution, the testator could have a temporary period of capacity during that time.
The first step to an effective estate plan is to create a will. A will can be amended during the course of your life time. If you do not have the will in place, the state will determine how your property is distributed for you.