Halloween Special: The Scary Tale of What Makes a Will Valid
What makes a will valid? To begin, you are asking the entirely wrong question! Mmmmmmwwwwahahahahahaha!
You must ask a more specific question what makes a will valid in Iowa. After all, every state can and does have different laws for a will’s validity, as well as for probate, trusts, and so on.
Iowa law has several requirements (sometimes called formalities) which must be present for a will to be legal and binding. If you miss even one formality–yes, even one!–you run the risk of your will being declared “dead.” Forever dead and invalid…which sounds like a nightmare for your loved ones.
In Writing (Can Be Blood or Ink)
Iowa law requires a will to be in writing. That means any oral statement of the decedent doesn’t count. This is true even if the oral statement(s) relate(s) directly to naming people who should inherit specific property.
Even a statement recorded by audio or video cannot constitute a valid will. [Cue evil laugh.]
Testatrix or Treat?
The person making the will must sign it, or direct some other person to sign the will in his or her presence. Lawyers call the person who makes the will either a testator (male) or testatrix (female).
Two Witnesses to Tell the Tale
Two witnesses to the will signing are also required. There is almost a bit of a dance between the testator or testatrix and the two witnesses.
The person making the will, in the presence of the two people acting as witnesses, must declare the document is his or her will and request the two people to sign the document as witnesses. The witnesses must sign in the presence of each other, and in the presence of the testator/testatrix.
There are also standards for being a qualified witness. A witness must be at least 16 years old and be mentally competent. A person who receives property under terms of the will may be a witness, but that person will have to forfeit any amount in excess of what s/he would receive if there were no will.
Are You Competent?
A will is valid only if the person making the will, the testator or testatrix, has sufficient competency at the time the will is made. In this situation, “competency” has two prongs: the testator must be of full age AND sound mind.
Full age simply means legal majority, which is age 18 (or 17 and married). Of course, many monsters are hundreds of years old!
Is your mind sound?
All I can imagine with the phrase “sound mind” is the mad scientist saying “brainssss, brainsss!” But, is “sound mind” a real thing? Yes!
A testator must indeed be of sound mind. The testator/testatrix has sufficient mental capacity if s/he: (1) understands the nature of the instrument s/he is executing; (2) knows and understands the nature and extent of his or her property; (3) remembers the natural objects of his or her bounty; and (4) knows the distribution s/he wants to make. If s/he is unable to meet any one of these tests she cannot make a valid will. The mental capacity must exist at the actual time of the making of the will.
Did you say “natural objects of bounty?”
The natural objects of his or her bounty is a fancy legal phrase. Essentially this refers to a spouse and children, if any, or other close family members; the maker of the will should generally know and recognize his or her natural heirs.
This test of mental capacity is not a particularly high standard to meet. The Iowa Supreme Court declared:
“Ability to transact business, generally, is not essential to testamentary capacity. Advanced age, failure of memory, senile dementia not shown to render the testatrix of insufficient mental capacity to understand the nature of the act, to recollect the extent of her property and the natural objects of her bounty and their claims upon her, and to comprehend the manner in which she wishes her property distributed, childishness, mental weakness, and old age are not, of themselves, sufficient to deprive her of testamentary capacity”
Walters v. Heaton, 271 N.W. 310, 313 (Iowa 1937).
Are you frightened to death of making a mistake with your will? Never fear! I can always help. Email me at email@example.com or call me on my cell at 515-371-6077. I’d be happy to offer you a one-hour free consultation.