In the estate-planning world, there are many different requirements (depending on the state) for a last will and testament to be valid. One of the main reasons to make a Will is for it to set forth the final distribution of your assets. There is no point in having a Will if it is not deemed valid in the event it is challenged in a court of law. Each state has its own requirements, but the following is for Wills that are created in the state of Illinois.
First, the person making the Will must be of sound mind at the time it is signed. They must know what they are doing, what assets they own, and how the assets will be distributed. At the end of one’s life, many families try to create a Will for their dying loved one based on how they believe the soon to be departed person wants the assets to be distributed. This is where a snag comes into place. A notary and the two witnesses cannot sign the Will if the client is not of sound mind when he or she signs it. If they do, it could be considered fraud or undue influence and the Will could be invalidated if challenged. If the maker of a Will has been deemed disabled by a court of law, any Will he or she makes after the date of the court determination, will be presumed invalid.
A Will must have proper signatures in order to be valid. For my clients, I like them to initial every page of the Will and sign their name on the last page. We also make sure there is a clear page number on every page, so no pages can be added or removed between its signing and the death of the maker.
A Will must have proper witnesses. In Illinois, a Will must have a minimum of two credible witnesses. That means the witnesses must be competent, have the mental capacity to understand what they are signing and be at least 18 years of age. Additionally, the witnesses cannot be interested parties, meaning they cannot be named in the Will as receiving any benefit, nor can they be family members who could possibly take under the Will per the IL probate descent and distribution statute. We also like to have the maker’s signature notarized in addition to the two disinterested, credible witnesses for extra security.
One claim to invalidate a Will involves fraud. Knowingly making false statements or having the intention to deceive anyone can be grounds for dismissal of the Will in probate court. Wills should be as clear as possible to make sure all of your wishes will be carried out as intended.
As you can see, there are many reasons how a Will could be invalidated. Unfortunately, I have reviewed many Wills brought in by potential clients which are not valid as a result of the client trying to either use an online form they found on the Internet or by using an attorney who does not specialize in estate planning. Don’t waste your time by trying to do this yourself, and make sure your final wishes come true, call us today!