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Requirements Of A Will

A valid will cannot exist unless three essential elements are present. First, there must be a competent testator. Second, the document purporting to be a will must meet the execution requirements of statutes, often called the Statute of Wills, designed to ensure that the document is not a fraud but is the honest expression of the testator's intention. Third, it must be clear that the testator intended the document to have the legal effect of a will.

If a will does not satisfy these requirements, any person who would have a financial interest in the estate under the laws of descent and distribution can start an action in the probate court to challenge the validity of the will. The persons who inherit under the will are proponents of the will and defend it against such an attack. This proceeding is known as a will contest. If the people who oppose the admission of the will to probate are successful, the testator's estate will be distributed according to the laws of descent and distribution or the provisions of an earlier will, depending on the facts of the case.

Competent Testator A competent testator is a person who is of sound mind and requisite age at the time that he makes the will, not at the date of his death when it takes effect. Anyone over a minimum age, usually 18, is legally capable of making a will as long as he is competent. A person under the minimum age dies intestate (regardless of efforts to make a will), and his property will be distributed according to the laws of descent and distribution.

An individual has testamentary capacity (sound mind) if he is able to understand the nature and extent of his property, the natural objects of his bounty (to whom he would like to leave the estate), and the nature of the testamentary act (the distribution of his property when he dies). He must also understand how these elements are related so that he can express the method of disposition of property.

A testator is considered mentally incompetent (incapable of making a will) if he has a recognized type of mental deficiency, such as a severe mental illness. Mere eccentricities, such as the refusal to bathe, are not considered insane delusions, nor are mistaken beliefs or prejudices about family members. A person who uses drugs or alcohol can validly execute a will as long as he is not under the influence of drugs or intoxicated at the time he makes the will. Illiteracy, old age, or severe physical illness do not automatically deprive a person of a testamentary capacity, but they are factors to be considered along with the particular facts of the case.

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