Ways A Will May Be Invalid
When creating a last will and testament, it’s important to avoid ways your will may be invalid. That is why getting with an experienced and knowledgeable estate planning lawyer is your best action. For example, Attorney James R. Nici of Naples, Florida has been assisting clients for over 25 years to ensure their wills are valid and enforceable.
Not Legally Created
The primary purpose of a last will and testament is to communicate your final wishes for how your assets are to be distributed in a legally protected way. For example, in Florida, for your will to be valid under Florida law, it generally must be properly executed and witnessed. What does that mean though? You must sign at the end of your will while in the presence of at least two competent witnesses. Your decision to execute your will must be free and voluntary.
A will is a legal document and must include all required parts to make it valid. Again a good estate planning lawyer knows how to create a will that includes all necessary parts and will make sure it is properly executed and witnessed.
So it doesn’t matter if, for example, your favorite aunt told you that they would leave you their house once they passed away. If her will does not specifically bequeath you the house and the will is properly and legally created, sorry you are out of luck. It won’t matter if you can recall the exact date and time that verbal promise was made. If your aunt did not create a will naming you as the beneficiary of the house, the ownership of the house cannot be legally guaranteed to you. Her will is the document that will take precedent over any remembered verbal promises.
Your Will Must Be Free and Voluntary
Florida law requires your last will and testament to be created by you when you are in full control of your mental capacities. Remember your decision to execute your will must be free and voluntary. Executing a will is the technical term for signing a will and making it legal. You must not have been manipulated by lies or bullying or taken advantage of when you are are not fully mentally competent.
Because wills can be altered and updated throughout your lifetime to reflect your changing wishes, you need to be of has to be of sound mind during any changes. This rule exists to allow you to fix your will to reflect new realities such as the loss of a spouse or the gaining of a new grandchild you wish to include as a beneficiary.
This rule also prohibits other parties, such as “scheming” family members or unscrupulous caregivers, from taking advantage of an elderly person. Ideally your estate planning attorney would have helped structure your will to consider common beneficiary issues. For example language that divides your estate among your 3 children and if one has predeceased you, their share goes to their children (grandchildren). A red flag may go off if an elderly person suddenly decides to change their will to give the bulk of their estate not to their beloved children but to the caregiver that visits them daily.
A will procured by fraud is another reason a will may be invalid. If you were tricked into signing, then the will was acquired by fraud (a lie). For example if you were told by someone you trust, like one of your children, that you needed to sign a power of attorney which was actually a new will, that will would not be valid. The trickery fooled you into signing something you did not realize was that “new” will leaving your estate to the one child and excluding the others.
If you’ve ever written a bank check but forgot to sign on the signature line, you can appreciate the importance of signing a last will and testament.
It’s always smart to consult with a lawyer on estate planning to make sure you are properly signing your will. Florida law requires the will to be signed by you and at least two witnesses. The witnesses must also be competent. If multiple wills are presented, the probate court will have to sort out which one is the legitimate one. Witnesses can be called on to explain what they thought the testator was signing. A will might be declared invalid if the testimony of the witnesses does not sound legitimate.