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Work with experienced attorney to ensure your will is enforceable, P.1

Setting down one’s wishes regarding the disposition of one’s property after death is important business, particularly for those with significant wealth. One reason for this is that challenges to a will can result if the document is not well drafted and properly executed, and this can translate into increased costs for the estate, more time in court, and less money for surviving friends and family. What can a testator do, then, to ensure the enforceability of his or her will?

Unfortunately, there is sometimes nothing one can do to prevent all possibility of challenges to a will, aside from passing on property outside a will. For those who do choose to use a will to dispose of their property, there is, first of all, ensuring the document is properly executed. 

State law requires that the testator be of sound mind and at least 18 years of age or an emancipated minor. The document must be in writing and signed in the presence of two witnesses, who must also sign. The witnesses are required to be “competent to be a witness.” A will may be signed by an interested party, provided he or she is competent. Tangible personal property lists must be signed by testator and describe both the items and the devisees with reasonable certainty.

Second, ensuring the enforceability of a will is also dependent on ensuring it is will not be voided if challenged later on. State law recognizes several situations where a will may be voided by a court. This includes situations where a will is procured or revoked by fraud, duress, mistake or undue influence. Proving such circumstances is not necessarily an easy matter, but this doesn’t stop folks from trying anyway.

In our next post, we’ll look at some suggestions for reinforcing these requirements with an eye toward ensuring the enforceability of a will in court, and how an experienced attorney can help. 

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