First, you must be an adult (18 years of age). The law has a history of not allowing minors to enter into contracts, and the same is true of wills. Certain things are so important that we do not want children doing them.
Second, you must be of “sound mind and memory”. This is fancy lawyer-speak for, the person who made the will knows 5 things:
1. You know you are signing a will
2. You know the will gives away what you own after death
3. You know what own
4. You know who would normally get what you own after death
5. You know the effect of signing the will
This requirement should not be underestimated. This requirement, more than almost any other is the one that is used in court to challenge the validity of a will. Many people do not form a will until they are well into an advanced age, and perhaps have various illnesses, including Alzheimer’s.
Third, you must intend the document to be a will. To do this you should make your intention plain from the beginning. This is usually accomplished simply by writing at the top of the document “Last will and testament of… ” A will is not valid if it is meant as a joke. It is only valid if it is intended to be a will.
Fourth, a will must be in writing. A will may be handwritten or typed. You don’t need fancy paper or a quill pen. In some circumstances the law allows for oral wills, but even in that case someone else reduces it to writing.
Fifth, not surprisingly, a will must be signed by the person making it. It must also be signed at the end of the document.
Sixth, it must be signed by two disinterested witnesses. Two people who will not be receiving anything under the will, must witness the testator sign or acknowledge the will, and then sign the document themselves. Ideally you want two witnesses that can be found locally and that are likely to be alive after you go (in other words, younger than you).
These are simple requirements that almost anyone can meet. It is simple enough to create a will, understanding what you can do with it and what items to include is where it becomes more tricky. Future articles will explain what a will can do for you.
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