Despite the fact that wills are something that a lot of people will have to write during their lifetime, a lot of people don’t really know much about them.
This probably isn’t helped by the fact that the legalities surrounding wills are often bent in popular culture, with many TV shows and movies taking wills as legal.
Even though they never would have stood up in court in reality. So what makes a will legal?
There are lots of different things that have to be accounted for in order for a will to be legal. The first thing that has to be established in order for a will to be considered valid is the state of mind of the testator.
The testator is the person who is writing the will, and their state of mind has to be assessed to ensure that they are fit enough to make this will.
After all, a will may be just a piece of paper, but it holds the rights to a lot of financial assets, so you must be of sound mind when writing it.
The main thing that a lawyer must look for when assessing for sound mind is whether the testator seems conscious and aware of what they are doing.
Additionally, they must confirm that the person writing the will is an adult over the years of 18.
Finally, some States might also require the testator to have knowledge and understanding of their assets before they are able to make their will.
Can I just write my will on a piece of paper?
If you have watched any movie that includes people writing their own will, then you probably will have observed them literally writing their own will with a pen and paper.
While this isn’t common practice, you can actually write your own will on a piece of paper. However, it isn’t as simple as you might expect.
In theory, yes, you can just write your will on a piece of paper. But the experience that you have when doing this will be very different from what you see in the movies.
In a lot of shows you will see a single person, sat alone, frightfully running their will as their death seems imminent. In the movies this will always stand up in court and is executed. However, in reality, it definitely wouldn’t.
For a handwritten will to stand up in court, it must be signed in the presence of two independent adult witnesses. The will doesn’t need to be written in the presence of these witnesses, but they must be there to see you signing it.
Without these witnesses, your will is not legally binding, and so it is likely that your assets would go to your next of kin. Not who you specified in the handwritten will.
So, yes, you can just write your will on a piece of paper. In theory, you could even write your will on an old napkin, and as long as there are two independent witnesses there to see you sign it, then that will would stand up in court.
How does a will look?
While it is possible to complete a handwritten will on an old scrap of paper, this isn’t the way that most people choose to do this.
Traditionally, wills would have been handwritten but due to the rise of technology, the majority of wills are now typed up on a computer.
In reality, these wills aren’t even printed out anymore. In a lot of cases, they will instead be stored on a hard drive and backed up elsewhere.
A will that is completed in the presence of a lawyer will be titled ‘Last Will and Testament of (your name)’.
Prior to signing your will, you usually will have discussed where you want your different assets to go in the event of your death, and your lawyer will have typed these up for you.
But before you get to this part of your will, you will first have the ‘preliminary declarations’ that you accept before signing this will. These confirm the revoking of any prior wills, your marital status, and whether you have any children.
Following this you will then have a section that dictates the appointment of the executor of the will. Then, finally, you will have the details of your assets and where you want them to go.
Finally, after all of these, there will be a space for you to sign to confirm that all the details in the will are correct, and that this is your final will and testament.
What are the three conditions to make a will valid?
Anybody can write their last will and testament on a piece of paper, but for this to be valid, it must meet three different conditions.
This is why a lot of people go through a legal representative to write their will, as this will help confirm that everything has been done correctly.
After all, your will dictates where all of your life’s assets will go when you pass away, so you want to ensure that everything is in order.
For your will to be valid, it must meet the following three conditions:
- The testator must be an adult, over the age of 18 years old, and they must be in sound mind.
- The will must be in writing with a signature by the testator, and it must also be signed by two witnesses in the presence of the testator.
- The will must be notarized and certified by a notary public to confirm the identities of everyone who has signed the will.
These legalities can sometimes be a little frustrating, especially if you simply want to get your will written and signed as soon as possible.
However, it is very important that all of these conditions are met in order for your assets to be protected in the event of your death, and for your will to be legal.
What would make a will invalid?
There are lots of different things that can make a will invalid, and this is why wills and probate is such a big part of the legal system.
A will might be considered invalid if it does not meet the three conditions that we outlined earlier, but this isn’t the only reason that a will might become invalid.
In fact, the most common reason why a will is discounted as invalid is when the testator was influenced to write their will.
This is particularly common in elderly people who are often unduly influenced by somebody else (who doesn’t have the testator's best interest in mind) to change their will.
In particular, it is very common for a caregiver, or an adult child to force an elderly person to alter their will, so that that caregiver becomes the sole beneficiary of the elderly person's will.
If an elderly person’s will has been changed to make a single person the sole beneficiary, then it will often be flagged up through the legal process.
If this happens, an investigation will be launched into the validity of that will to see if there was any undue influence.
If this is found then that will, will become invalid and the person who coerced the elderly person into changing it will receive nothing.