All too often, people go to great pains to write a will and put other estate-planning documents in place, only to have a court invalidate them.

Are you sure your will can hold up in court? Review these three points to make sure your will is ironclad in the eyes of a judge.

  • You Must Have Unbiased Witnesses When You Sign Your Will. For a will to be valid in most situations, you need to sign the will in the presence of witnesses. Those witnesses will have the responsibility of testifying in court that the person making the will acknowledged that he or she was signing a last will and testament. These witnesses possibly could be called to say whether the person signing the will appeared to have the mental capacity to sign a will and that the person was not under any sort of pressure that would qualify as undue influence in court.

The Motley Fool article titled “3 Reasons Your Will Won’t Hold Up in Court” stresses that it is important that the witnesses are not receiving assets from the estate—this could look like a conflict of interest and lead a court to choose not to accept that person as a qualifying witness. Without witnesses, it can be difficult or impossible to convince a judge that a proposed will is valid—especially if some of the family and heirs contest the will’s validity.

  • If You Disinherit Family Members Without Being Clear. This is an area that really requires you to consult with an estate planning attorney. The law typically is in favor of treating family members equally. Thus, if you want to give your daughter more than your son or leave him out entirely, you must be extremely clear about your intentions while not giving that individual cause to dispute the will. The Motley Fool advises that you at least acknowledge the existence of all of your natural heirs, including your spouse, children, or other family members who would be in line to receive your assets under state law if you died without a will. You can then say that the will intentionally makes no provisions for that individual to receive any assets. That is not to say that the person you leave out of the will could put up a fight in court, but it improves the chances that a will contest will not destroy your planning.
  • If You Are Determined Not To Have The Mental Capacity To Sign A Will. One way people can contest a will is if the individual signing the will did not have the necessary mental capacity to execute an estate planning document. In other words, when you sign a will you have to understand what assets you own, your closest family members, that you are leaving the property to your designated beneficiaries after you pass, and your overall plan of who will be the recipient of parts of your overall estate. It is important to understand that even if you have a form of mental illness, you can still execute a valid will as long as you meet these requirements.

Courts have the authority to review your will for validity; however, if you adhere to these three ideas, you will have a better chance of having your wishes respected after your death.

Reference: The Motley Fool (June 28, 2014) “3 Reasons Your Will Won’t Hold Up in Court

For more information on asset preservation and estate planning, please visit my estate planning website.

Mr. Amoruso concentrates his practice on Elder Law, Comprehensive Estate Planning, Asset Preservation, Estate Administration and Guardianship.