Generally, a will or trust may be invalid if you lacked the required capacity when creating it or the document does not conform to legal requirements. A will or trust may also cease to have legal effect if properly revoked.
Unfortunately, defects in a will or trust might only be discovered after your death, giving you no chance to correct them. It is critical to create a will or trust properly the first time. Simple mistakes in drafting or execution can be costly, and improper modifications can create disputes about how you wanted your estate distributed.
Contact Harris Law Firm, PLLC, for help with estate planning. We can draft a will or trust to provide peace of mind, or revise an existing estate plan to reflect your current needs.
Key Takeaways
What Makes a Trust or Will Invalid?
A will or trust can be thrown out for reasons that have nothing to do with what your loved one actually wanted. Here’s what commonly invalidates these documents in Mississippi.
- Missing Signatures:
A will generally needs the testator’s signature plus two witnesses, and an interested witness can void their own bequest. - Lack of Capacity:
The person creating the document must understand what they own, who’s inheriting, and what the document legally does. - Undue Influence:
Pressure or coercion used to force changes to a will or trust can void the document entirely. - A Newer Document Wins:
Creating a new will automatically invalidates the previous one, even if that wasn’t the intent.
When Does a Will Become Invalid?
A will may be invalid for various reasons, but lack of capacity, coercion, fraud, and failure to follow the required formalities are often reasons it fails to hold up in court.
Lack of Capacity
Under Mississippi law, you must be at least 18 and of “sound mind” to create a valid will. You have capacity to create a will if the following are true:
- You appreciate the nature and effect of creating a will. You must understand that a will determines how your property will be distributed after your death.
- You understand the natural objects of your bounty. This is legalese for identifying your close family and their relationships to you. You do not have to leave anything to your family, but knowing who they are is part of the capacity assessment.
- You are capable of determining how your property is to be distributed. You can decide who will receive your estate.
Other than being younger than 18, you might lack capacity if dementia or intoxication prevents you from understanding what you are doing when you sign the will. Often, a will is challenged because of the mental capacity of the person creating it.
We’re Here to Help
Worried Your Loved One’s Will or Trust Might Not Hold Up?
Whether you’re concerned about undue influence, a missing signature, or a document that was never properly executed, we understand how unsettling it is to question whether your family’s wishes will actually be honored. Our team at Harris Law Firm will review the details with you and explain exactly where you stand.
Coercion, Duress, or Undue Influence
A will may also be invalid if you did not create it freely. If coercion, duress, or undue influence overcame your free will, then your will is invalid.
Although ordinary persuasion is not enough, some conduct can rise to the level of overcoming your free will, including:
- Threats,
- Physical violence, or
- Deprivation of food or water.
In Mississippi, there may be a presumption that a beneficiary used undue influence if they have a confidential relationship with you and participated in drafting or amending your will. However, your will may still be upheld if the court receives clear and convincing evidence of your independent consent.
Fraud
A will may be invalid if fraudulently created. For example, your child might give you a bunch of papers to sign and lie that they are insurance forms. One of the forms is an amendment to your will. If you signed the form based on a lie, the amendment may be invalid.
Missing Formalities
Mississippi law requires certain formalities for wills:
- Writing. The will can be typed or handwritten.
- Signature. You generally must sign your will for it to be valid.
- Witnesses. Unless you have a handwritten will written entirely in your handwriting and signed by you, at least two disinterested witnesses must sign your will in your presence. They should know the document is your will when they sign.
If your will does not follow these formalities, it may be invalid.
Revocation
A will also ceases to have legal effect when properly revoked. You can revoke a will by:
- Physically obliterating, canceling, or destroying it;
- Executing a declaration canceling the will that meets the legal requirements for revocation; or
- Executing a subsequent will that revokes a prior will.
You may also change certain parts of a prior will without fully revoking it. For example, you might want to change who will inherit certain assets. You can change parts of a prior will by executing an amendment, also called a codicil.
The Will Contest: When Does a Will Become Invalid After Death?
A judge may still admit a defective will to probate unless someone challenges it. For example, your child might claim you were unduly influenced to change a will. The undue influence is not apparent from the face of the document, so it appears valid to the court.
A disappointed heir might file a will contest. If successful, then a previously valid will might control how assets are distributed, or the state’s intestacy rules apply.
There is no way to eliminate the possibility of a will contest completely. But your lawyer can reduce the likelihood that a will contest will succeed when helping to create your estate plan:
- Use credible witnesses. The people who witness you sign a will might need to testify later at a will contest.
- Have witnesses execute an affidavit. The execution of the will may be proved by signed witness affidavits. An affidavit is helpful if years have passed since the will was signed and no witnesses are available to testify in court.
- Videotape the execution of the will. A lawyer might videotape the signing to help establish that you had capacity when creating the will.
Questions may arise about your capacity or intent after your death, when you can no longer explain your intentions. By following the legal formalities and working with an experienced estate planning attorney in Mississippi, you can help avoid these difficulties.
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Does a Will Become Invalid After Divorce?
A will does not automatically become invalid after divorce. However, a divorce may affect gifts you planned to make to your spouse if you drafted the will before divorcing.
Under the law, your former spouse is treated as having died before you. Any gifts to them are revoked, unless you provided otherwise in the will. The law also treats any relatives of your ex-spouse as having died before you, unless they are also related to you (such as a child you had together).
Reviewing your will after divorce makes sense. You can take another look at the distribution of your estate and rework your will, if necessary.
What Makes a Trust Invalid?
A trust can be invalid for many of the same reasons as a will: lack of capacity, fraud, undue influence, or failure to meet legal requirements. Some trusts are invalid because of a defect in creation. Under Mississippi law, you have created a valid trust when:
- You have capacity to create a trust;
- You manifest your intent to create a trust;
- Your trust has a definite beneficiary, unless it is a charitable trust or has a valid noncharitable purpose;
- The trustee has duties to perform; and
- The same person is not the sole beneficiary and sole trustee.
A valid trust can also include a termination date. Mississippi law also provides that a trust terminates when no purpose remains to be achieved, or the purpose becomes unlawful or impossible.
A revocable trust may also be revoked. For example, you might create a simple revocable living trust and revoke it simply because you no longer want it.
Common Questions
Invalid Wills and Trusts: Frequently Asked Questions
If you’re asking what makes a trust or will invalid, these are the questions we hear most often from families dealing with a disputed estate document.
A Mississippi will can be invalidated for several reasons: missing signatures from the testator or two witnesses, lack of testamentary capacity, being replaced by a newer will, or signs of undue influence, such as coercion or pressure placed on the person making the will.
Yes. A trust can be invalidated if it doesn’t meet legal formalities, was created through fraud, the creator lacked capacity, or undue influence was involved. An invalid trust means the assets typically pass through Mississippi’s intestacy laws instead of the creator’s intended distribution.
Undue influence occurs when someone uses pressure or coercion to override a person’s true wishes, rather than persuading them through normal means. An example would be threatening to place an elderly parent in a poor-quality care facility unless they change their will in someone’s favor.
Generally, a person must be at least 18 years old and of sound mind to create a valid will in Mississippi. There are limited exceptions for individuals who are married, in the military, or legally emancipated before turning 18.
Contact Harris Law Firm for Assistance with Your Estate Plan
An estate plan should provide peace of mind, but errors in creating wills and trusts can keep you awake worrying whether you have protected the people who matter most. Since 1981, Harris Law Firm has served clients throughout Mississippi and Arkansas, providing strategic legal advice and offering personalized service.
Contact us to discuss your estate planning matters.
Legal References Used to Inform This Page
To ensure the accuracy and clarity of this page, we referenced official legal and other resources during the content development process:
- Matter of the Estate of Edwards, 520 So.2d 1370 (1988), test for legal capacity.
- Croft v. Alder, 237 Miss. 713 (1959), presumption of undue influence.
- Miss. Code Ann. § 91-5-1, execution of will.
- Miss. Code Ann. § 91-5-3, revocation of will.
- Miss. Code Ann. § 91-7-7, proving execution of will with an affidavit.
- Miss. Code Ann. § 91-29-1, effect of divorce on a will.
- Miss. Code Ann. § 91-8-402, requirements for a valid trust.
- Miss. Code Ann. § 91-8-410, termination of trust.
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