Trusts and Estates: Wills
Trusts and Estates: Wills
A will is the core legal instrument for transferring property at death. It reflects a person’s intent, but that intent only controls if the document meets the law’s execution requirements and survives later events like revocation, changes in property, or a successful challenge. Understanding how wills work requires more than knowing “who gets what.” The law of testamentary transfers also governs formalities, default rules when there is no valid will, and doctrines that resolve inevitable real-world complications.
What a Will Does (and What It Does Not)
A will directs the distribution of a decedent’s probate estate, meaning assets that pass under court supervision rather than by contract or title. Many valuable assets never follow a will at all, such as:
- Life insurance proceeds paid to a named beneficiary
- Retirement accounts with beneficiary designations
- Payable-on-death bank accounts
- Jointly owned property with rights of survivorship
- Trust property held in a revocable or irrevocable trust
A will still matters because it can control probate assets, nominate a personal representative (executor), waive certain bond requirements, create testamentary trusts, and nominate guardians for minor children. It also plays an important role in coordinating an estate plan so that beneficiary designations and titling align with the overall plan.
Execution Requirements: Making a Valid Will
Testamentary capacity and intent
To be valid, a will generally requires testamentary capacity and intent. Capacity is a legal threshold: the testator must understand that they are making a will, grasp the general nature of their property, and recognize the natural objects of their bounty (close family and others who would ordinarily be expected to benefit). Intent means the document is meant to operate at death, not as a present transfer.
Capacity is often litigated in edge cases, especially where dementia, serious mental illness, addiction, or medication affects cognition. Importantly, capacity is not an all-or-nothing condition across time. A valid will can be executed during a lucid interval if the legal standard is met at signing.
Formalities: writing, signature, and witnesses
Most wills must be in writing, signed by the testator (or by another person at the testator’s direction), and witnessed. Witness formalities exist to reduce fraud and provide reliable evidence of authenticity.
Witness requirements vary by jurisdiction, but common principles include:
- The testator signs or acknowledges the will in the presence of witnesses.
- Witnesses sign within a specified period, often while the testator is present.
- Witnesses should be disinterested, because gifts to interested witnesses may be restricted or voided under some statutes.
A will can be “self-proving” if it includes an affidavit (typically notarized) signed by the testator and witnesses. A self-proving will streamlines probate because the court can accept the will without tracking down witnesses years later.
Holographic wills and harmless error
Some jurisdictions recognize holographic wills, which are handwritten and signed by the testator, sometimes without witnesses. The key issue is whether the handwriting and signature sufficiently demonstrate authenticity and intent.
Modern statutes in some places also adopt a “harmless error” rule: if a document was not executed with strict formalities, a court may still treat it as a will if there is clear evidence the decedent intended it to be their will. This is not universal, and relying on it is risky. The safest course remains proper execution.
Revocation: How Wills Are Changed or Cancelled
A will is ambulatory, meaning it has no legal effect until death and can be changed during life. Revocation typically occurs in one of two ways.
Revocation by later instrument
A new will or codicil (an amendment) can revoke a prior will expressly or by inconsistency. If a later will disposes of the entire estate, it commonly implies revocation of earlier wills. Partial amendments should be handled with care. Poorly drafted codicils can create contradictions that invite litigation.
Revocation by physical act
A will can often be revoked by a physical act performed with intent to revoke, such as tearing, burning, or canceling the document. Disputes arise when a will cannot be found after death or is found mutilated. Many jurisdictions apply a presumption that a missing will last known to be in the testator’s possession was revoked, though that presumption can be rebutted with evidence.
Revocation by operation of law
Life events sometimes affect dispositions. Divorce is the classic example: many laws revoke gifts to a former spouse and sometimes remove the former spouse from fiduciary roles. Marriage, birth of children, and other changes can also trigger statutory protections, depending on local law. These rules vary significantly, but the common theme is that the law tries to approximate what many people would want, while still respecting testamentary freedom.
Intestacy: The Default Plan When There Is No Valid Will
When someone dies without a valid will, intestacy statutes determine who inherits the probate estate. Intestacy is a comprehensive default scheme that prioritizes close family relationships, typically moving in tiers:
- Surviving spouse (often with differing shares depending on whether there are descendants and whether those descendants are also descendants of the spouse)
- Descendants (children, then grandchildren by representation)
- Parents
- Siblings and their descendants
- More remote relatives
Intestacy can produce outcomes that surprise families, particularly in blended families, long-term unmarried partnerships, and situations involving estranged relatives. It can also cause administrative burdens, such as identifying and locating heirs. A properly executed will reduces those uncertainties and allows planning around tax, liquidity, and family dynamics.
Will Contests: Challenging a Will in Court
A will contest is a lawsuit or proceeding arguing that a will is invalid or should not be admitted to probate. The most common grounds include:
Lack of capacity
A contestant may claim the testator lacked testamentary capacity at execution. Evidence often includes medical records, witness testimony about behavior, and expert opinions. Courts focus on the testator’s condition at the time of signing, not generalized decline.
Undue influence
Undue influence involves pressure that overcomes the testator’s free will, resulting in a disposition that reflects someone else’s intent. Common fact patterns include isolation of the testator, dependency, secrecy around planning, and disproportionate benefits to the influencer. Because direct evidence is rare, contests often rely on circumstantial indicators.
Fraud and duress
Fraud may involve tricking the testator about the contents of the will or inducing a gift based on false statements. Duress is more direct coercion, such as threats. Both are serious allegations and can invalidate part or all of a will.
Improper execution
Even when intent is clear, a will can fail if formalities are not met. This is why competent drafting and careful signing ceremonies matter.
No-contest clauses
Some wills include no-contest (in terrorem) clauses designed to deter litigation by penalizing a beneficiary who challenges the will. Enforceability and scope vary by jurisdiction, and many places limit enforcement if the challenger had probable cause.
Ademption: When the Gift Is Gone or Has Changed
Ademption addresses what happens when a will gives a specific item, but the item is not in the estate at death. The classic example is a will that gives “my car” or “my house on Oak Street” to a named beneficiary, but the testator sold it during life.
- Specific gifts are most vulnerable to ademption because they identify a particular asset.
- General gifts (for example, a cash amount) are typically satisfied from general estate assets.
- Demonstrative gifts are a hybrid: a general amount payable from a particular source if possible.
Real life complicates ademption. Assets may be replaced, refinanced, converted to different forms, or sold by an agent under a power of attorney during incapacity. Jurisdictions differ in how they treat replacements and tracing. The practical planning lesson is simple: if a gift is tied to a specific asset, review and update the will when that asset is sold or significantly changed.
Practical Takeaways for Effective Will Planning
A will is not just a document; it is a legal event that must be executed correctly and kept current. Sound practice includes:
- Use proper execution formalities, including qualified witnesses and, where available, a self-proving affidavit.
- Coordinate the will with non-probate transfers like beneficiary designations and joint ownership.
- Revisit the plan after major life events such as marriage, divorce, births, deaths, significant purchases, or relocations.
- Be careful with specific bequests that can adeem if assets are sold or transformed.
- Reduce contest risk by documenting capacity, using independent counsel where family dynamics are tense, and keeping the signing process clear and well witnessed.
Wills sit at the intersection of personal intent and legal structure. When done carefully, they provide clarity, reduce conflict, and ensure that property transfers at death reflect the testator’s choices rather than default statutes or courtroom battles.