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D. No special format for a Will

D. No special format or “magic words” are required for a valid Will.

To qualify as a Will, it must appear to the court – looking only at the document itself – that it was intended to be the final expression of the Testator’s wishes as to the disposition of his/her property to take effect upon death. That is why a general letter stating one’s desires, or a list of property with beneficiaries names usually is insufficient.

Most importantly, the Will maker must have “testamentary capacity.” Under the law of most states, this requires that the Testator be of “sound mind,” which might be a misleading term. He must only be aware of the nature and extent of his property, and of the “natural objects of his bounty.” He must understand, for example, that he has three children and four grandchildren, who would “naturally” be those to whom a person would leave his/her estate. (But that does not mean this Testator must do so.) Additionally, the Testator must be aware that by signing the Will, he is making a final disposition of his property.

It is significant to point out that the Testator is not required to be mentally “sharp” or reasonable or fair. He must only know what he is doing, to the extent described above. If he does, the law will respect whatever disposition he cares to make, subject to lawful claims that must be paid first, and the rights, if any, of the surviving spouse.

Most Wills recite that the Testator is of “sound mind.” That standard clause would not settle the matter, however, if somebody complained that the Testator was mentally weak and under “undue influence” or duress from another party. But the law “bends over backwards” to reject such claims, and uphold Wills that appear to be valid. Never mind if the Testator had been acting quite “funny” in his last months during which the Will was written. Never mind if the Will is unfair and one child is favored over the rest. By themselves, those kinds of facts would virtually never be enough to convince a judge to declare a Will invalid. (If a Will is thrown out, the estate is handled as if there had never been one to begin with.)

Attorneys are frequently consulted by adult children, concerned because their parents have no Will. Often, the mental condition of the parent in question is deteriorating rapidly, but there are still “good days.” The law makes it perfectly proper for the Testator to execute a Will during such a “lucid interval,” if testamentary capacity truly exists at the moment of signing.

If typed, the Will must be signed in the presence of two (in most states) witnesses, who must sign in the presence of the Testator and each other. Such a Will may be self-proving if it contains notarized clauses in which the Testator and the witnesses make certain formal recitals. In a nutshell, the parties affirm that all of them are within sight of each other, that the Testator is of sound mind, knows he is signing his Will, and has asked the witnesses to so attest. No witnesses would then have to appear in court to verify the document.

Some states allow holographic Wills – in which the significant portions must be entirely written in the handwriting of the Testator – with no witnesses required. Contrary to popular belief, however, many states do not permit such Wills.

“Codicils” are amendments to an earlier Will. No written additions or changes should ever be made on the original document, however. Instead, a separate page should be prepared, referring specifically to the original Will, and executed with the same formalities required of a Will in your state. Keep the codicil with the Will, and keep it simple. If the desired changes are at all complicated, subject to more than one interpretation, or potentially in conflict with other provisions of the Will, better to just start from scratch and do another Will. (Remember to destroy the old one to avoid any confusion.)

TIP: Read your Will before signing. If the signature line says “Gustav Balch,” and that is not your name, do not sign it! (This advice is based on an actual Will we reviewed for an Aunt, who is not named Gustav.) It is no secret that all law offices use “form” documents, such as Wills they have previously drafted, as models for subsequent clients. It would be foolishly inefficient to reinvent the wheel every day; you are paying the attorney for guidance in formulating and implementing a plan, not for typing. Obviously, however, editing mistakes can occur. If something is not right, or if you have any concerns, do not be afraid to speak up!

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