Very few documents that people sign are as crucial as the last will and testament, often referred to as a “will.” A will is a legal document that states the wishes of the testator (the person making the will) after they pass away. Under Miss. Code Ann. § 91-5-1, a valid and binding will must meet specific legal requirements. The laws prescribe conditions for the testator and for the will itself.
While executing wills has been a common practice for centuries, traditional laws have relaxed over time. If you’re thinking about creating a will, consult with an attorney to ensure that your wishes are accurately reflected in the document.
Testator and Witness Requirements for Valid Mississippi Wills
Under Miss. Code Ann. § 91-5-1, anyone at least 18 years old and of sound mind can create a will. The testator must sign the will or direct another person to sign it in the testator’s presence. However, if the testator does not completely write the will, at least two credible witnesses must attest to the will in the testator’s presence.
Testamentary capacity is critical to creating a valid will. The testator must be aware of their actions in creating the will and understand the implications of their expressed wishes.
Further, under the law, witnesses to a will should not include a beneficiary of the will. Failing to abide by this rule may nullify the gift or bequest to the witness-beneficiary.
Requirements for Mississippi Wills
According to § 91-5-1, the will must meet standard requirements. The statute states that the document or codicil must be signed by the testator or another person in the testator’s presence and by his express direction. These are the standard will requirements; however, various exceptions may apply under certain circumstances.
Under Mississippi law, a will must include a surviving spouse, but parents are not required to leave any part of their estate to their children. To disinherit a child, the will must explicitly state the parent’s intent.
Oral and Handwritten Wills in Mississippi
Mississippi is one of the only states that accept nuncupative (oral) wills. These wills are only valid if:
- They are made at the time of the testator’s last illness, and
- At their residence or where they resided for 10 days before their passing.
Typically, the most that a testator can bequeath in an oral will is $100. A bequeath exceeding $100 is only valid if two people who the testator called on to bear witness can prove the testator’s will.
Holographic (handwritten) wills are valid if the document is testamentary in character and is written, dated, and signed by the testator.
Does a Will Have to Be Notarized in Mississippi?
In Mississippi, notarizing a will is unnecessary for legality. However, notarization can make a will “self-proving,” which removes the need for witness testimony during probate.
Revocation of a Will in Mississippi
Mississippi law allows testators to revoke or modify their will at any time. A testator can achieve revocation by:
- Destroying or canceling the will,
- Ordering another person to destroy or cancel the will,
- Make a new will that revokes any prior wills, or
- Creating a document that meets the requirements of a will and expressly revokes an old will.
Under certain circumstances, an automatic revocation could occur. For instance, if the testator did not have a child at the time they made the will, but they do at the time they die, the will is revoked unless:
- The child dies before 21, and
- The child dies without being married or leaving children behind.
In these cases, intestacy laws go into effect as though the testator never made a will.
Contesting a Will in Mississippi
Potential heirs or beneficiaries cannot change a will simply because they disagree with its contents. However, under certain circumstances, one could challenge a will on the grounds that it is not legally valid or enforceable. Let’s look at some of the most common reasons one could contest a will.
Lack of Capacity
This might be relevant in cases where an older adult revokes a previous will and creates a new one that is drastically different.
Undue Influence
Wills resulting from fraud, undue influence, or duress might be invalid. This could occur in cases where the testator was under someone’s care, and that caregiver becomes a primary beneficiary over the testator’s other family members.
Additionally, one can contest a will in cases of forgery and duplicate wills. In light of Mississippi law, those who believe their loved one’s will is invalid must take immediate action.
Contact an Experienced Mississippi Trust and Will Lawyer for Assistance
What are the requirements for a will to be valid in Mississippi? If you’ve pondered this question, you are not alone. Let the dedicated estate planning lawyers at the Harris Law Firm, PLLC, put their four decades of experience to work for you. We can work with you to ensure that all your estate planning goals are met. We can also help you identify which estate planning tools may be most effective at accomplishing your goals and answer any questions you have about the process. To schedule a free consultation, reach out to us through our online contact form.
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