Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 16, 2019

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The relevant question concerning the validity of wills is whether the person was competent at the time the will was made and executed (signed before witnesses). If the person was competent at that time, there is a valid will.  The whole point of making a will while you’re healthy is to make sure the will is valid if you later become incapacitated. A problem might arise if the person making the will was competent when the will was made, but later became legally incompetent, and then wanted to change the will. In that case, the changes to the will wouldn’t be accepted by the probate court if there is evidence that the person was incompetent at the time the changes were made. The original will would still be a valid will.

Evaluating Mental Capacity and the Validity of Wills

There are three basic characteristics of a person’s mental capacity and state at the time of the will’s drafting that the court considers when determining the validity of wills. These factors are typically evaluated either by statements directly in the will or by the testimony of witnesses. In fact, that is why it is so important that three witnesses not only sign the will, but also give their address and any other pertinent contact information.

The first characteristic of a valid will that the judge evaluates is that the person is of sound mind. A person must be of sound mind when they create their will because they are making decisions regarding the entirety of their property. Sound mind is defined in general as having an understanding of your actions and a knowledge of your family, possessions, and surroundings. The typical way that the requirement of sound mind is met is through a phrase in the will’s opening such as, “of sound mind and memory.” This phrase makes the will a self-testifying will.

The second characteristicof a valid will that the judge evaluates is that the will is being made freely. It is a direct violation of the law in the United States to somehow induce someone to make a will. The most common problem observed in this regard is when a caregiver uses their close relationship to influence the person’s decisions in asset bequeathal. Such undue influence will not only result in a invalidated will, but a huge and costly court battle for the family in order to establish the undue influence.

The third characteristic is that the will is made willingly. Wills can never be made under threat of harm, regardless of how noble the person’s intentions are. Once again, if the will is shown to have been made under duress (threat of harm) it will be automatically invalidated.

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Getting Help with Wills

If you have concerns about someone’s mental state when drafting their will, or if you have questions about the court’s requirements for a valid will, contact an estate planning attorney for a consultation. As a general rule, it is a good idea to always have wills drafted by an attorney who can also offer some guidance as to acceptable mental states.