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What makes a will valid or invalid?

On Behalf of Reisinger Booth & Associates, P.C., L.L.O.  |  Oct 22, 2021  |  Estate Planning

A will is intended to convey a person’s final wishes for how they want their property to be distributed after their death. If a will is valid, it is legally binding on the probate court. The deceased is no longer around to answer any questions, and so the court takes all this very seriously.

First, the court must determine if the will is valid. Because a will is so important, it must meet a number of requirements before a court will rule that it is valid.

‘Of sound mind’

First, the basics: Under Nebraska law, the person creating the wall is known as the testator. To execute a valid will, the testator must generally have been of sound mind and 19 years or older. The will must be in writing and signed by the testator in the presence of two witnesses. In some cases, a court may accept a will written in the testator’s handwriting even without witnesses, but requirements for this type of will are stringent.

Next, one must ask what it means for a person to be “of sound mind.” This doesn’t necessarily require an IQ test or a medical opinion showing that the testator was in good mental health. Rather, it’s a question of whether the will accurately reflects the testator’s wishes.

If the court believes the testator made the will as the result of duress or fraud, it may find the will invalid. For instance, if it finds someone had physically threatened the testator into revising their will, the court will most likely rule the will is invalid.

A related concept is known as “undue influence.” A court may find that an interested party exerted such a profound influence on a vulnerable testator that the will is invalid, even if there is no evidence of duress or fraud.

Avoiding family battles

Disputes over wills can be very difficult for families. For estate planning purposes, the best way to help one’s family avoid this kind of problem is to get a professional’s help and execute a will that meets all the formalities and requirements under state law.

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