What is a Will
A Last Will and Testament is written directive of how you want your estate to be handled.
include instructions on how to dispose of your remains, who is to handle your affairs after your
(the Executor), who is to be the guardian of any minor children (if no other parent is living or
responsible for the children), who to give your assets to (naming the Beneficiaries), and many
other potential matters. A Will can be very cryptic or it can be 10 or more typed pages long.
Will & Testament Trivia
Under old common law, there used to be a separate writing disposing of real property (real
estate) called a Testament, and a separate writing disposing of all other personal property (all
other property) called a Will. Thus the archaic phraise "Last Will and Testament". At this date
the name "Will" is recognized as covering both real and personal property, although many users
still use the long, Will and Testament terminology.
Is the Will Valid?
Because Wills are directives meant to survive the death of the Testator, the laws are very
precise as to what is a valid Will, and what will be disregarded as a valid Will by the Courts. The
main reason behind these precise rules is to prevent fraud and to insure the authenticity of the
writing. After all, the person best suited to testify if the writing is real or a fraud is dead and
unable to testify.
A will written entirely in the handwriting of the Testator is called a "Holographic Will".
Thus, a single piece of paper that says nothing more than "This is my last Will. I give all that I
own at my death to XXXXX", and that is dated and signed, is sufficient to be a valid Will.
However, if any part of this writing is not in Testator's own handwriting, it will be held invalid.
In addition, upon Probate of the holographic will, the court will require proof of a person familiar
with the Testator's signature to proof the genuineness of the document. A holographic will does
not have to be witnessed.
If the will is not holographic, i.e., it is printed, the Testator's signature and intent will have
to be witnesses by at least two witnesses (three in New Hampshire). When signing the
document, the Testator has to signal his knowledge that the document he/she is signing is his/her
last Will. Both witnesses have to be present and watch the Testator sign the document, and
both witnesses should then watch each other sign the witness declaration of the Will. To
avoid will contests in the future, the witness declaration invariably contains a clause that the
Testator seems of sound mind, and is not under any sort of coercion or duress in signing the will.
Obviously, if the Testator seems to be mentally incapacitated to the witness or witnesses, they
should not affirm by their signatures that he is of sound mind.
Witnesses may not be Beneficiaries
Most, if not all states have laws that automatically "disinherit" any person named as a
beneficiary in a Will if that person is a witness to the Will. The reason behind this law is that a
witness may not be truthful in his or her statements (that the Testator was the person who signed
the Will, was of sound mind, etc.) regarding the execution of the Will. Therefor, make sure that
if you are, or may be a beneficiary under the Will, either as a spouse, child, lifelong friend, etc.,
you do not witness the Will but have another person witness the Will.
Make sure that the rigid formalities shown above are followed. If not, the Will
may be deemed invalid. If the Will is deemed invalid, either a prior will, if any would be held
valid, or the court may decide there is no valid will, in which case the estate would pass under the
laws of intestacy. Either way the estate will not pass in the manner desired by the Testator, to
the detriment of at least some of the named beneficiaries.
Changes to Will
Lastly, make sure that you review your Will after any material change of circumstances
regarding your family make-up. A marriage or divorce is typical. For example, most state's laws
presume that if your Will pre-dates your marriage, that you forgot to include your
spouse, and awards your spouse the share she would have received had you died
(The law would call her a "pre-termited heir") This could be devastating if, for example, you
were both well off, and it was your intent to leave your estate for benefit of your parents who
needed the monies. If this happened your spouse would receive all of your property and your
parents none. Another example is a married couple where each spouse gifted their property to the
other spouse, and after the Wills were executed had a child. If the Will is not changed, at one
spouse's death the child is deemed a pre-termitted heir and is entitled to receive his or her share as
if there was no Will. In this situation a guardianship would have to be established to hold the
monies received by the minor, and the spouse would have no independent access to this
Changes to the Will can be made by writing a new Will. The law presumes that by writing
a new Will, the Testator wants to revoke the prior Will. Despite this presumption, most Wills
include the phrase "I revoke all prior Wills (or to that effect)".
Changes to the Will can also be made by writing a Codicil. To be effective, a Codicil
should make specific reference to the prior Will, and makes additions, deletions, or amendments
to the prior and still effective Will. As with Wills, a Codicil can be holographic if written entirely
in the Testator's hand, or can be witnessed, in which case it must follow all formalities of a
witnesses Will as shown above. A witnessed Will may be amended by a holographic Codicil.
The laws of each state differ slightly with the formation and interpretation of Wills.
However, the basic principles set forth above are followed by each state, and if followed the
procedure for making
wills discussed above, and followed in the Free Will & Testament with this service, produces a
valid and legally binding Last Will & Testament.