Drafting a last will and testament is not as simple as scribbling down a few notes on your deathbed and giving it to a trusted friend. In some cases, a handwritten “holographic will” like this could withstand a challenge in court, but an informal will is risky and ill-advised.
In fact, there are numerous ways that a will could be invalidated . It’s important to understand these potential will weaknesses so you can avoid having your will contested after you’re gone.
Problems with the way you signed the document
In most situations, you’ll want to have two different people present to “witness” your signing of the will. These people need to be non-beneficiaries. In other words, they will not be involved in any dispensation of the estate and they do not stand to benefit in any way from your will. Furthermore, they should not have a legitimate claim to inherit under state intestacy laws that would go into effect if no will were present.
The witnesses need to be present at the same time when you sign your will. They also need to sign the document while the others are watching.
Problems with testamentary capacity
You need to have “testamentary capacity” when you create and sign your will. To have testamentary capacity, you must understand (1) the value of your assets, (2) the people who will inherit your assets and (3) the effect of signing the will. If you are insane, temporarily insane, mentally incapacitated or suffering from dementia, at the time of signing your will, it could invalidate the document.
Problems related to undue influence
Imagine someone held a gun up to your head and said, sign this last will and testament in front of these two witnesses. Basically, you signed over all of your wealth to be inherited by the person holding the gun. This would be undue influence, and — so long as the influence becomes known — it would invalidate the will that you sign.
Problems related to fraudulent wills
A fraudulent will could be an entirely fabricated document. It could also be a document that other parties trick the testator into signing. One of the issues relating to a fraudulent will — or any potentially problematic will for that matter — is the fact that we cannot ask the testator what is correct because he or she is no longer here to answer questions.
Make sure you draft your will in a legally appropriate manner
Being careful with your will planning is essential. Don’t risk losing the legacy you leave behind because you made a simple mistake while planning you will. Learn about New York estate planning law and plan accordingly.