6 Common Mistakes That Invalidate A Will

Mar 27, 2024

When you create a will, you are taking an essential step toward ensuring that your possessions will be distributed according to your wishes and your loved ones will receive the assets that you’ve designated them to receive. However, wills are complex documents, and you want to ensure that your will is created in accordance with proper legal guidelines, so there are no grounds for your will to be subject to a challenge. 

Working with an experienced Texas estate planning attorney is the first step in ensuring that your will is airtight. Michelle E. Murphy has been serving the state of Texas with comprehensive estate planning services for over a decade, including will creation, and is here to outline some of the pitfalls to avoid when making a legally valid will. 

Challenging A Will

Before we get into the mistakes that many people make as they are drafting their will, it’s important to highlight the consequences of creating a will that doesn’t comply with the legal requirements. If there are mistakes in your will, it opens the will up to legal challenges while your estate is being distributed by your executor. If there is perceived invalidity, your estate is open for litigation, which means that your beneficiaries will fight over your assets. In order to avoid the potential for strife and ensure that your last wishes are honored, you want to make sure that your will stands up to legal scrutiny. 

When you create your will, you need to keep validity in mind! These are 6 common mistakes that invalidate wills. 

#1: The Testator Lacked Testamentary Capacity

In order for a will to be legally valid, the testator (the creator of the will) must have the capacity to understand the expanse of their estate and the impact of their will. In the event that a testator is too ill, too elderly, or otherwise unable to comprehend the ramifications of their decisions in regard to their will, they are said to lack “testamentary capacity.” You are also lacking testamentary capacity if you are suffering from an illness like dementia or under the influence of drugs or alcohol. 

In order to avoid a challenge to the will based on lack of testamentary capacity, let it be known that you are creating your will when you are of sound mind–consider an examination for a mental health professional prior to signing your will if you are overly concerned about your will being contested on these grounds. 

#2: The Will Was Created Under Undue Influence

Similarly, when you create a will, you must be creating the will of your own volition and without what is known as “undue influence.” If a testator is particularly ill, elderly, or otherwise vulnerable, an individual can ingratiate themselves with the intention of taking a more advantageous position in will to the disadvantage of other beneficiaries. Undue influence occurs when a vulnerable individual is manipulated into creating or editing a will in order to prioritize the person who is doing the influencing. If a person changes their will late in life in order to leave the majority of their estate to an individual, especially if they dispossess other loved ones, their will can be challenged on the basis of undue influence.

#3: The Will Was Not Witnessed

In order for your will to be validated, it needs to be witnessed and signed by two third-party individuals who do not stand to gain anything from your estate. Your witnesses must be competent legal adults (over the age of 18). They must be “disinterested” parties, meaning that in addition to not standing to inherit anything from your estate, they must not be related to you by blood or marriage. It’s also recommended you pick someone who is not likely to die before you. 

#4: The Will Was Made Using An Online Service

If you have looked into will creation, you have likely discovered that there are online services and templates you can use in order to create your will. Though these might seem like time and money savers, they are likely to complicate your succession planning down the line. Since wills are such complex legal documents and each one is unique to the person who is creating it, it’s typical for these documents and services to not be relevant to the family’s situation (and therefore, cause my problems). More pertinently, laws governing wills vary from state to state. Attorneys study for years in order to create wills that are legally compliant, so it’s impossible for these templates to account for all of these legal nuances and variations.   

#5: The Testator Created A New Will Without Revoking The Old One

There are some circumstances in which a testator creates a new will after already having an existing will. One common reason for doing so is in the event of a divorce when it becomes beneficial to create a new will in order to rearrange the assets that would have gone to your ex-spouse. However, when you create a new will, you must in no uncertain terms include a clause in your new will revoking the old one. At that point, it’s also a good idea to burn the old will. In situations where two wills exist and it’s not clear that one has revoked the other, conflict ensues. In the end, it might transpire that neither will is valid since they, in effect, cancel each other out. 

#6: The Will Is Ambiguous Or Contains Errors

Finally, you want to be sure to work with a professional like Michelle E. Murphy because you want your will to be as clear as possible. If your will is littered with errors and ambiguities, it opens the will up to challenges. You want to be sure that your intentions are perfectly understood–you don’t want to put your legacy at risk over something as trivial as unclear language or spelling errors. 

Trust Michelle E. Murphy With The Care And Cultivation Of Your Will

When it comes to creating a legally valid will that leaves no ground for challenges, working with a Texas estate planning attorney like Michelle E. Murphy will give you peace of mind for the future. Reach out to schedule a free consultation and learn how she uses her 20 years of experience in estate planning to create bulletproof wills that will help you and your family secure your legacy.