Many people choose to have their wills done themselves without the involvement of an attorney. This approach is perfectly acceptable for simple estates. However, even in such situations, I have run across several common mistakes on these wills that have a large impact on how the will is viewed by the courts after the testator’s death, and could also increase the likelihood of a contest of the will.
The first of these common mistakes involves witnesses. Namely, there are not enough that have signed the will. In the state of Minnesota, a valid will must be signed by the testator and (at least) two witnesses, all of which must sign in the presence of the others. A will that is typed up and signed only by the testator is not valid, and the testator of such a will is considered to have died intestate by the courts. So the lesson here is always have two witnesses sign a will if you want it to be valid.
The second mistake is related to the first: to notarize or not to notarize. While Minnesota does not require a valid will be notarized, a self-proving will does require notarization. A self-proving will is not a special kind of will, but it is a will with a special provision that certifies that the testator and the witnesses properly signed the will (and that the entire execution of the will was proper and valid under state law).
What is the benefit of a will being a self-proving one? There is no need to locate the signing witnesses when trying to admit the will into probate. If the will is not self-proving, at least one witness must be located to prove that the testator was at least 18 years of age, of sound mind, and knew what he or she was doing when the will was executed. If the witnesses are easily available, this typically does not mean anything more than some additional legal fees to get these affidavits from one of the witnesses. However, if at least one witness cannot be found or both are deceased, then additional evidence must be found proving the validity of the execution of the will. Even in a situation where the evidence is easily discoverable, the legal fees can be significant. Where there is scant evidence, and there is any possibility of the testator not being of sound mind (such as with a testator advanced in age), the legal fees can be even more, and there is always the possibility that the will would be rejected as invalid by the probate court.
Notarizing a will is a very simple step you can take that goes a long way in saving time and money down the line.
Lastly, one of the biggest mistakes I’ve seen is not revoking a previous will in a current will. This has the effect of simply updating your previous will, and the will would be taken together with any previous wills that were not voided.
For example, let’s say you drafted Will A, which leaves $50,000 to Abby. You later decide that Abby does not deserve anything, and decide in your next will, Will B, to cut her out completely. However, you do not have a provision voiding Will A or one that specifically says that Abby is intentionally excluded from the will. Thus, upon your death, if both wills make their way to the probate court, Abby will get $50,000 despite your wishes that she get nothing.
Yes, you can invalidate an old will by defacing it (i.e. writing “VOID” across all of the pages) or destroying it (fire is a reliable bet), and you still should destroy old wills regardless of their invalidation in future wills. However, adding a clause to your will conclusively stating that all previous wills are void will demonstrate to the probate court that you did not intend that will be to read with any other wills, and it greatly reduces the possibility of a will contest.
These mistakes are easily fixed during the drafting process. Anyone can avoid these common pitfalls very easily, and they are well worth the small amount of effort in saving your heirs time and money.
Contact Byellin Law if you have any questions about drafting your will for a free consultation.