Four Essential Elements of a WillAshley R. Gordon
March 22, 2011 — 1,279 views
As a general rule, the basic elements required to be present for a valid will to exist, with caution taken, however, to incorporate them in accordance with state laws are as follows:
1. It must have been executed with testamentary intent. In other words, it would have to be the intent of the party making the will (testator) to make the document his or her dying wish and said desire should be expressed and stated.
2. The testator must have had testamentary capacity. That is, he or she must have had the ability, at the time the will was drawn and executed, to do that which he or she intended. In other words, did he or she have the ability at the time to understand and appreciate the effects of their act or deed?
3. The execution, assuming capacity, must be done of testator's own free will, that is, without undue influence, duress or the like.
4. It must have been duly executed and be in compliance with statutory requirements. A will cannot be accepted for probate if it is not "duly executed".
A will, even though accepted for probate, may be cancelled or set aside by a "will contest" if it was executed as a result of fraud, undue influence, or duress or if the testator lacked testamentary intent or capacity. The local probate court rules will contain the procedures to raise the question (as by contest or petition to set aside the will). An action to revoke or set aside a will can be initiated by either a party to the will or a party who feels they were wrongfully excluded from a will.
The information contained in this article is for informational purposes only and should not be construed to give any legal advice. I've been a practicing paralegal for over 25 years and am interested in providing information based on my training and experience in various aspects of the law.
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