Last Will & Testament of the Terminally Ill

By David Carnes

Because a last will and testament disposes of property when someone dies, courts are careful to make sure that a will is in valid form and that it actually expresses the deceased's wishes. When someone makes or changes a will while dying of a terminal illness, special concerns arise concerning the dying person's mental competence.

Requirements for a Valid Will

In every state, the most important prerequisite for creating a valid will is "testamentary capacity," a form of mental competence. Having testamentary capacity requires knowing how much and what type of property you own, knowing who your beneficiaries are and knowing how your assets will be divided among your beneficiaries. It also includes understanding that you are making a will, and what the effect of making a will is. State laws also impose formal requirements. In most states, for example, a will must be in writing and the signing of the will must be witnessed by two adult witnesses. Finally, the language of the will must express your intentions with reasonable clarity.

Terminal Illness

Terminal illness by itself doesn't prevent you from creating or modifying a valid will. The key question is whether or not your illness robbed you of the testamentary capacity necessary to create or modify a will. A purely physical ailment, for example, is less likely to affect your testamentary capacity than an illness that results in dementia.

Protect your loved ones. Start My Estate Plan

Nuncupative Wills

Most state do not recognize an oral will as valid, and other states recognize one only if it is made as the final act before death -- by a terminally ill patient on her deathbed, for example. Typically, two witnesses are required. States that recognize oral wills allow them to dispose of personal property but not real estate, and place dollar limitations on the amount of property that they may dispose of.

Burden of Proof

When an apparently valid will is entered into evidence in a probate proceeding, it will be considered valid until proven otherwise. The person challenging the will bears the burden of proof. Since a probate proceeding is not a criminal proceeding, the challenger need not establish invalidity "beyond a reasonable doubt." Instead, the standard is "preponderance of the evidence," meaning that the challenger must produce enough evidence to convince the court that the will is more likely than not to be invalid. Even this standard of proof may be difficult to meet if witnesses testify that you were of sound mind when you signed the will.

Protect your loved ones. Start My Estate Plan
Can You Contest a Will When the Testator Was Medicated?



Related articles

What if an Executor of an Estate Destroys the Decedent's Last Will & Testament?

When a person draws up her will, she may think her work is done. A valid will sets out a road map as to what will happen to her property when she dies, naming beneficiaries and an executor to shepherd the will through probate. However, it is possible that an executor could destroy a will with or without the maker's consent.

Is a Written Will a Legal Document?

A will is a legal document because it grants rights to the will's executor and beneficiaries. However, a will is only a legally valid instrument if it meets criteria as defined by state law. A will that fails to adhere to such criteria may be deemed worthless in a state court. Therefore, when preparing your will, it is essential to familiarize yourself with the laws of your state or have an experienced attorney draft the document.

Basic Requirements for a Last Will & Testament in New York

A last will and testament is a sworn statement that declares how and to whom property will be distributed upon the death of the testator -- the person making the will. A will also appoints an executor to manage the transfer of the property according to the wishes of the deceased. The basic requirements to make a last will and testament in New York are outlined in the New York Estates, Powers and Trusts Code.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Handwritten Last Will & Testaments

Each state has its own laws on what constitutes a valid last will and testament. In most states, a will must be in ...

Reasons to Contest a Will

It is not enough to be unhappy with the way the property of an estate is distributed in a will to contest its validity, ...

Definition of a Legal Will

A will -- also called a last will and testament -- is a document describing what you want to happen to your estate when ...

Is a Hand-Written Notarized Will Legal?

Your will can direct the distribution of your property after your death, name someone you trust to manage your estate ...

Browse by category
Ready to Begin? GET STARTED