What Makes a Will or Trust Invalid?

If you are thinking about making a will or creating a trust as part of your estate plan, you want to be certain that it will be valid, and that any challenges to your estate plan will not be successful. Sometimes it is possible to look at a will and see that it is invalid; for instance, a will that is unsigned by the person making it (the “testator”) is not valid. Sometimes it is not apparent from the will itself that it does not meet legal requirements. That can cause problems if the will’s invalidity is not discovered until after the testator’s death.

On the flip side, if you need to know how to prove a will is invalid, you will have to establish facts that prove the legal requirements for a valid will were not met. What makes a will invalid, and how can you make sure that your will is valid under Michigan law?

When is a Will Invalid?

When it’s not in writing.

Let’s start with the straightforward things that make a will invalid. In Michigan a will that is not in writing is not valid. For the record, “in writing” includes handwritten or holographic wills, but those can have their own problems. That said, the fact that a will is written by hand and not printed off of a computer does not necessarily invalidate it.

How about a video will? It seems like a videotaped will should be valid. You can see that it was made by the testator, and can detect from their appearance and words that they are of sound mind and acting voluntarily. However, Michigan law is clear: a valid will must be a “document or writing.”

When it’s not signed.

As mentioned above, a will that is not signed by the testator is not valid…unless it is signed by someone else in the testator’s name and at the testator’s direction. In that case, the other person is, functionally speaking, acting as an extension of the testator’s hand.

When it’s not witnessed (usually).

A will that is not properly witnessed is generally not valid in Michigan. Valid witnessing of a will requires that it be signed by two individuals who either actually observed the testator signing the will, or were present when the testator acknowledged that the signature on the will is their own. If the will is not witnessed when it is signed by the testator, the witnesses should sign within a reasonable time thereafter. Witnesses do not have to be someone who is not named in the will, but it is preferable to have “disinterested” witnesses.

You may have noticed that we said that a will that has not been witnessed is generally not valid in Michigan. If the will is handwritten and dated and the material portions are in the testator’s handwriting, it may be valid as a holographic will.

When the testator didn’t have “testamentary capacity.”

You’ve probably seen movies in which there is a “reading of the will” at an attorney’s office. The first words the attorney intones are usually, “I, John Q. Smith, being of sound mind and body…” Why do wills talk about “sound mind?” That’s a reference to testamentary capacity.

Testamentary capacity means, generally, that the testator knows what property they own, who they would ordinarily leave their assets to, and that they are signing a document that will dictate who receives those assets after their death. It is even possible for a person with dementia to validly sign a will so long as they understand those things at the time they sign. However, to avoid having your will challenged for lack of capacity, it’s best to have it drafted and signed long before dementia or incapacity becomes an issue.

In order to have testamentary capacity, a person must also be of legal age to sign a will. In Michigan, that’s eighteen. There probably are not a lot of sixteen year olds out there trying to make estate plans, but if there are any, they’ll need to cool their heels for a couple of years if they want their will to be valid.

When there is a more recent valid will.

Validly signing a new will automatically invalidates any previous wills. However, unless your family members know when your most recent estate plan was prepared, they may find an older will and submit it to probate. To avoid that happening, do two things: destroy your old estate plan as soon as the new one is effective, and communicate with your family about the fact that you have made a new will or trust and where they can find it when the time comes.

When the will was not signed voluntarily.

A will may appear valid in every respect but still be invalid if the testator did not make it voluntarily. There are a number of situations in which a testator’s execution of a will is not fully voluntary. A family member or caretaker may have exerted undue influence over the testator to get them to make or change a will. The testator may have acted under duress, such as a threat of harm if they did not make the will. Or, someone may have gotten the testator to make a new will by fraud—either by telling them false facts to make them want to change their will, or convincing them that the document they are signing is something other than a will.

How to Make Sure Your Will is Valid

The best way to make sure that your will is not only valid, but works as you intend it to, is to have it drafted by an experienced Michigan estate planning attorney. Your attorney will ensure that your estate plan complies with all requirements for a valid Michigan will.

To learn more about validation of a will, or about challenging a will you believe to be invalid, please contact Estate Planning & Elder Law Services to schedule a consultation.