What Makes a Will Legal & Binding?

by Carrie Ferland

When executed wholly and correctly, a will is a legal document that supersedes any other document, contract or verbal conveyance the testator may have established during her lifetime. This is because a will is a type of one-sided contract, defining the wishes and instructions of the testator as she herself describes them without any outside or undue influence. However, there are multiple facets of a will that establish it as a legal, binding document.

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Format

Choosing the appropriate format for conveying your final wishes is the first step to establishing a valid will. The most common and universally accepted format is the written will, which you can either type or handwrite and which all 50 states and the District of Columbia recognize. Other formats, such as the nuncupative will and the videotaped will, are only explicitly recognized by few states and considered void in most others. A will executed in an invalid format is neither legal nor binding, regardless of the testator’s state of mind or intent.

Testator’s Signature

For a will to be valid, it must bear the testator’s original signature at the very bottom. A will that bears a typed signature or no signature at all is an unsigned contract: the intent is there, but unless the contracting party verifies she agrees with the terms by signing the document, the contract is not considered executed. Without the testator’s signature, a will has absolutely no authority and is not legally binding.

Testamentary Capacity

To execute a valid will, a testator must possess statutory capacity. While each state defines its own guidelines for testamentary capacity, the most common requirements are that the testator be at least 18 years of age and of sound mind. What constitutes “sound mind” is typically not explicitly defined, but in general, the testator must be free from mental disease or defect, not under the influence of mind-altering medication, and free from duress or coercion at the time she executes her will. The testator must understand the significance of executing a will, know the terms defined within her will -- particularly important if she retained someone else to draft it -- and agree that her will describes her true and actual wishes. Otherwise, even if she signs the will, it is not valid and therefore not binding.

Attesting Witnesses

In addition to the testator’s signature, a will must bear the signatures of at least two disinterested witnesses who can attest to the testator’s identity and state of mind. Witnesses are required for proofing the will, which establishes that the testator actually agreed to and signed the will and that he had the mental capacity to do so. While some states do recognize holographic wills -- that is, wills written entirely by the testator’s own hand and bearing only his signature -- witnesses bolster the validity of the will and protect the testator’s true interests. Without witnesses, the court has no real way of knowing the testator’s state of mind at the time he signed the will, leaving the potential that the testator could not or did not want to execute the will.