What makes a will invalid?

When it doesn’t follow state guidelines or the person writing the will was mentally incapacitated or forced to write it.

Key Takeaways

  • Valid wills are constructed in accordance with state law

  • A dissatisfied beneficiary or potential heir can contest an invalid will, but they may need to provide proof to the probate court

  • It can be difficult to prove a will is invalid because of undue influence or a lack of testamentary capacity

  • If you die without a valid will, probate will proceed as if you didn't write one

After you pass away, the legitimacy of your will must be proven in court during a process called probate. A will may be deemed invalid if it fails to follow the requirements set by state law, such as those regarding who can write a will, how the will should be constructed, and how it should be executed.

Every state has its own set of requirements for a valid will and failing to follow even one could invalidate it. Invalid wills also include those written without the required mental capacity (testamentary capacity) or under the undue influence of another person — however, these cases may be difficult to prove in court.

When there is an invalid will, someone, like a beneficiary dissatisfied with their inheritance, can try to challenge or contest the will. Having an invalid will is almost as bad as dying without a will (or in intestacy, as it’s formally known) as the court will determine who receives the deceased person’s property. An invalid will would also increase the overall cost of probate. This is why it's important to create an airtight will that passes muster in court. (You can create a will using attorney-approved with Policygenius.)

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Improper construction

A will must be properly constructed according to the state legal statutes. Some states also place an age requirement on who can write a will, like the testator must be the age of the majority or older. A will written by someone under age would not be valid.

Failing to use the proper legal language would also make a will invalid; that doesn't mean you have to use fancy legalese, but the will should express that it is a last will and testament, and not just a draft. (This is called testamentary intent.)

Writing a will by hand can invalidate a will, if you do not follow the rules set out by your state. Holographic wills — the official name for handwritten wills — aren't accepted in all states, and may only be recognized under certain circumstances or if they’re formally witnessed. The legality of oral wills, which are spoken out loud, is similarly restricted. Recorded or filmed wills are also not valid wills at this time.

Read this nine-step guide on how to write a will.

Failing to properly sign and witness

It’s essential that you sign and date your will, unless you are physically unable to make a signature. State laws usually provide a way to have someone else sign in your stead if you physically can’t sign.

A will is invalid if it is not properly witnessed. Most commonly, two witnesses must sign the will in the testator’s presence after watching the testator sign the will. The witnesses need to be a certain age, and should generally not stand to inherit anything from the will. (They must be disinterested witnesses).

Learn more about witnessing a will.

While witnessing is required for a will to be a valid legal document, notarizing the document usually is not — though it can be beneficial. Find out more about notarizing a will.

A lack of testamentary capacity

Testamentary capacity is a legal term for the mental capacity needed to write a will. The testator needs to understand the stakes and nature of the document: what a will is, how the will disposes of property, what property and assets they own. A will written with lack of testamentary capacity, such as during a delusion or even a drunken stupor, would be considered invalid.

Learn more about testamentary capacity.

Undue influence & fraud

Undue influence happens when a person coerces the testator into creating and signing a will against their wishes. The influencer does more than suggest the testator add them to their will — they put the testator under such duress so that they can’t act according to their own volition; the testator feels they have no choice but to sign the will. Fraudulent wills are procured when a person tricks the testator into signing the will, perhaps by pretending it is something else of less importance. Forged documents are also invalid wills.

In one notable example, after famous tycoon Howard Hughes died without a will, a handwritten one was brought to light but it was deemed a forgery and invalidated by the court.

Read about more high-stakes disputes over celebrity wills.

Multiple wills

You should destroy old wills so there is less confusion when you’re dead, but if there are multiple wills, the older documents must be invalidated for the most recent will to take precedence. When you update your will with a codicil or write a new one, it should also include a provision that revokes any that came before.

Related article: What you should never include in a will

How do you prove a will is invalid?

Proving that a will is invalid can be quite difficult depending on the circumstances. When a will is invalid based on construction or failing to comply with state law, the probate court may easily recognize this. (For example, they may examine the testator’s handwriting.) However, proving that a will is invalid for other reasons, like a lack of testamentary capacity or undue influence, requires the person contesting a will to provide proof before the judge. That means the challenger will likely need evidence of the circumstances of the testator when they wrote the will, which may have been years ago. It may also be difficult to locate witnesses to give testimony to the historical circumstances, and they may even be dead.

Contesting wills may become costly if you hire a probate attorney to help your case and it will ultimately delay how long it takes for the estate to be settled. See how much it costs to contest a will.

If you’re worried about someone contesting your will, you might consider including a trust as part of your estate plan. A trust distributes assets according to the terms you set out, apart from the will and outside of probate. Assets in a trust can be passed to beneficiaries even as someone is contesting your will. But keep in mind that a trust is also a legal document with its own specific requirements for validity.

Learn how living trusts and wills work together.

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