A will is a legal instrument that
will direct a court or other administrator as to what your wishes
are with regard to your property after your death. A will is your
words and in most cases, these words are binding on the
administrator unless there is a law that supercedes your will, the
will was made under duress or in the absence of a sound mind, or unless
the will is contested and ruled against in a court of proper jurisdiction.
In most cases, you should seek
professional assistance in preparing your will. After your
death, it is obviously not possible to ask you to clarify things
that are unclear. If you give things away that you are not
legally able to or make requirements that are against the law, it
can potentially invalidate a substantial part, if not all of the
will. Therefore, it is generally best to go through the
relatively easy process of having a lawyer create even a basic will.
Having said that, there may be
circumstances where there is not the opportunity to consult with a
lawyer, where there are few assets, or where you perhaps may not be
able to afford the cost of preparing a will. Therefore, it
would be necessary for you to know what requirements there are to
creating a will.
Do not make assumptions
Many people look at their loving
family and friends and assume that there will be no conflicts after
their death with regard to the estate. Don't make this
assumption and perhaps more importantly, do NOT put this temptation
in front of them.
If you assume that each will be
fair with the other, their opinions of "fair" may be
different than yours and different from each other's opinion.
Many siblings bear long and permanent damage to relationships that
started when their parents died and it came time to "be
fair" is the disposition of the estate.
Neither should you take anything
for granted when creating your will. Just because you told
everyone who was going to get your antique clock does not mean that
everyone is going to remember it that way.
The courts are generally quite
liberal in fulfilling your wishes according to your will. It
doesn't have to have legal language in it and it does not have to be
a formal document. Legal wills have been created in crayon on
the back of a napkin or a paper bag, and composed of no more than a
couple of sentences.
However, you should note that the
less specific a will is, the more general the court will have to
interpret it. You cannot expect the court to read your
mind. You must be as specific as you can be so that people
know exactly what you are talking about.
It is also important that you leave
your will with someone that you can trust. You could put
everything you should into a will, but if nobody knows about it or
someone destroys it, it's the same as not having a will at
all.
This is another reason to have an
attorney prepare your will. Your attorney can keep a copy of
it for you and be a witness to its formation. If someone were
to claim that you were under pressure or had lost your mind, the
attorney is a disinterested 3rd party who can attest to the
circumstances surrounding your mental state of mind. Your
other alternative is someone that you trust or a safe deposit box.
The following will assume that an
attorney is not involved in the production of your will and you are
doing it completely on your own.
Signature
The most important aspect of a
written will and one that will make or break it every time, is the
ability to determine that it is you that wrote the will. DO NOT just
type your name at the bottom or your will. A typed name does
not create a valid will because anyone could have done this and said
it was you.
In most cases, your legal signature
should be found at the bottom of the will and at the bottom of every
page. This is crucial if the will is typed or done in someone
else's handwriting because it affirms that you have read and agree
with every page.
Handwritten wills
Hand-written wills are completely
legal and often have great force when claims against the legitimacy
of the will are made. Written wills have even been upheld
without a signature when the will itself is in the obvious hand of
the person claimed as the testator.
If you prepare your own will, a
completely hand-written will is far more compelling to a court than
a typed one with your simple unattested to signature on the
bottom. A signature is reasonably possible to fake, but a
completely hand-written will would be very hard.
Verbal wills
Verbal wills are more common than
one would think. However, because they are open to memory,
interpretation, error, and personal agendas, they are the type of
valid will that has the least amount of weight.
A verbal will can be merely the
expression of thought from one person to another and are often the
expression of a person who is dying to make or change their will in
one way or another. However, a verbal will that is given but
never written down, even though the testator had ample opportunity
to do so later, is generally discarded, especially when there is a
written will to the contrary.
In many cases, verbal wills must be
heard by more than one witness and should include one or more
parties that have no interest in the outcome. Verbal wills are
very dangerous and should be avoided if at all possible.
Time of production (date)
Most people change their wills from
time to time. For this reason, a date should be affixed to the
will so that it can be determined which will is the most recent
version. A court will almost always honor the provisions of a
more recent will if there is no contention over the validity of that
will.
If the will does not have a date,
and there is more than one will, it can be hard to determine which
is the most recent and therefore, the legitimate version of what you
wanted at the time of death. Again, it is possible for a court
to determine which version of a will is newer by facts that may be
evident in the will or by testimony, but this can get tricky and
very dangerous.
Corroboration
A written will should also have a
witness sign it with you thereby stating that they saw you sign it
of your own free will. While this is not mandatory, it can be
used as corroborating evidence if a will is challenged.
To further corroborate the will and
avoid "identity" challenges, it is ideal to have a 3rd
party such as a notary public sign and affix their seal to the will.
By doing this, they attesting to the fact that s(he) determined by
legal means who you are, and that s(he) witnessed you actually
signing the documents.
