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What Determines a Valid Will?


Individuals who do not want to become deceased “intestate” (the property of persons who die intestate may go through state administered probate proceedings) must leave a last will and testament. Every state has requirements that dictate when a will is properly executed. These requirements are usually very strict. Failing to meet one or more of the requirements can invalidate a will. Many states have similar will validity requirements and the requirements usually follow certain policy rationales. The following are the elements of a valid will in Florida.

In Writing

One of the most basic requirements is that the will should be in writing. Writing can mean handwritten or typed. The person writing the will (the testator) must sign at the end of the will. In the alternative, another individual at the direction of the testator can sign the will. The person who signs the will must ensure that the signature appears at the end of the writing. The question of validity is at issue if the signature appears at another portion of the will. Further, the will must be signed in the presence of at least two attesting witnesses. The witnesses must sign the will in the presence of the testator and in the presence of one another. This requirement is a strict one. One witness will not suffice to validate a will. In the same vein, if the testator were to sign the will separately and then show it to the witnesses, the will would be invalid. It is important to note that the best witnesses are the ones who have no interest at all in the distribution of the will’s assets.

Testamentary Intent

The testator must have testamentary intent at the writing and signing of the will. Testamentary intent is the requirement that the testator must give recognition to the instrument as his or her last will and testament. This means that the will should not be written under duress or fraud. The testator should be in a clear state of mind and be cognizant that they are signing a will. For example, if someone signs a sheet of paper with the upper portion covered (the upper portion being the substance of the will), the writing is invalid, as the person signing it cannot appreciate that they are signing a will. Thus, testamentary intent did not arise.

Testamentary Capacity

Testamentary capacity is the ability of a person to create a valid will. Unlike testamentary intent, testamentary capacity has to do will the competency of the individual and their ability to appreciate and understand the consequences of writing the will. For this requirements, state have a hard age limit and a mental capacity requirement. The individual must be 18 years and older before they can write a valid will. For mental capacity, the testator must have the ability to know (1) the extent of her assets, (2) the person to whom she will distribute her assets, (3) the distribution that her will is making. In addition, the testator must be of “sound mind.” This requirement sets a rather low bar as to who can make a valid will. As long as the individual possesses a general understanding of the process, they have the capacity to write a will.

West Palm Beach Estate Planning Attorney

It is commonplace to put off writing a will. But if you want to protect your family and your property, a will is often the best course of action. Call the Law Offices of Larry E. Bray, P.A. in West Palm Beach to determine whether a will suits your estate planning needs.



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