What Makes a Will Legally Binding and Enforceable?
For all the stories about great ideas or works of literature starting out as notes scribbled on a napkin, it is not advisable you do the same for your last will and testament. Making your last wishes known requires deliberation, preparation, and a final document of indisputable authenticity and provenance that will not be challenged in probate court.
In this article, we will provide a brief overview of what Massachusetts law requires of the testator (the author of the will) and of the document itself in order for a will to be legal and valid.
Requirements for the Testator
The requirements a testator must meet in order for a will written by that person to be legal concern the testator’s age, the testator’s soundness of mind, and any undue influence put upon the testator.
The first requirement, regarding age, is simple: the person making the will must be at least eighteen years old.
There are multiple factors that determine if a testator is “of sound mind” when creating a will. These are:
- The testator understands the document is a will. That is, the testator understands the purpose of a will is to transfer property following his or her death. The language used in the will, such as “give” or “transfer,” must also reflect this fact.
- The testator understands the nature of their estate: While it is not essential for a person to know the exact value and finer details of all their assets, it is necessary that the testator can enumerate the assets to be distributed in a will.
No Undue Influence
Another key requirement for a will to be valid is that the testator did not come under undue influence during the writing of the will, such as from a caretaker. This is a major reason wills are challenged in probate.
Requirements for the Document
A will must be a written document, either handwritten or typed. Excepting the rare cases of mariners at sea or active-duty military personnel, oral (spoken) wills are not valid. Neither are video wills.
A will, once written, must be signed by the testator. This may be done in the testator’s own hand. This may also be done by another person at the testator’s explicit direction and in the testator’s presence and the presence of witnesses (more on that below). This second option may be applicable if the testator is quadriplegic or suffering from a condition that prohibits the ability to sign a document.
Two witnesses must observe the valid signing of the will (by the testator or by the person acting at the testator’s direction) or two witnesses must observe the testator acknowledge the will.
In Massachusetts, a will does not have to be notarized to be valid.
Make Your Plans Today and Worry Less About Tomorrow
No one enjoys thinking about the inevitable, but preparing for the final distribution of your property actually provides great peace of mind. If you are ready to get your affairs in order, or want to make changes to your will, get in touch with our office