Wills and trusts are two common estate planning tools that, when properly drafted, can provide you with peace of mind. However, the benefits of a will or trust won’t be available to you and your family if the documents creating them are legally invalid. That’s why anyone contemplating creating an estate plan must understand what makes a trust or will invalid so they can avoid the most common estate planning mistakes.
At Harris Law Firm, our dedicated team of Mississippi estate planning lawyers has been providing our clients with thoughtful advice and creative estate planning solutions for more than 40 years. We understand what makes estate planning documents enforceable and how to best craft them to accomplish your goals.
What Makes a Will Invalid, and When Does a Will Become Invalid?
Wills are important legal instruments that can have a significant impact on the rights of many people. Because wills are so important, courts closely scrutinize them to make sure they are legally valid before giving them legal effect. There are a few different ways that a will can be invalid.
The Will is Not Signed
For a will to be valid, it must be signed by the testator. The testator is the person creating the will. Additionally, a will must be signed by two witnesses in the presence of the testator if it is not a holographic will. A holographic will is one the testator wrote entirely by hand and also signed. Generally, a witness should be “disinterested,” meaning they don’t stand to inherit anything from the will. Having an interested witness sign doesn’t invalidate the entire will, but it will invalidate any bequests the interested witness would have received unless two other disinterested witnesses also signed the will.
The Testator Lacked Capacity
To create a valid will, the testator must have what is called “testamentary capacity,” which refers to their ability to understand what they own, who they want to leave their assets to, and the legal effect of creating the will. In Mississippi, only people over the age of 18 can have testamentary capacity unless they are married, in the military, or emancipated.
There is a Newer Version of the Will
As soon as someone creates a new will, the old will becomes invalid. This is true even if loved ones were unaware that their family member had created a new will. You should keep the latest version of your will stored in a secure place that a trusted family member or friend can access.
If someone exercised undue influence over the person creating the will, the will wouldn’t be valid. Undue influence occurs when someone pressures or coerces the testator to make or change their will. An example of undue influence is if an adult child tells their parent that they will send the parent to a less desirable long-term care facility unless the parent changes their will to what the child suggests.
What Makes a Trust Invalid?
For the most part, the legal requirements to create a trust are similar to those of a will. A trust is invalid in any of the following circumstances:
- The document creating the trust doesn’t meet the legal requirements;
- The trust was created or modified by fraud;
- The creator of the trust lacked the capacity to create the trust; or
- Someone exercised undue influence over the creator of the trust.
If a court finds that a trust is invalid, the assets that were supposed to be transferred into the trust will not be distributed under the terms of the invalid trust instrument. If the trust instrument is invalid, the assets that were supposed to be placed in the trust will instead pass to the creator’s heirs as provided by Mississippi’s intestacy laws.
Speak with a Lawyer About Your Long-Term Goals Today
If you don’t yet have an estate plan, if it has been years since you last updated your existing plan, or if you want to learn more about what would make a will invalid, Harris Law Firm can answer all of your questions and help you plan for your family’s future. Since 1981, we have helped clients from all backgrounds and at all stages of life create thoughtful and effective estate plans. We pride ourselves on developing customized solutions that will provide you and your family with peace of mind for years to come. Contact us online or by phone to schedule a free consultation with one of our Mississippi wills and trusts lawyers.