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.

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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.

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Types of Last Will & Testaments



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What Is the Act or Process of Proving the Validity of a Will?

Before a court can probate a will, it must determine that the will is valid and authentic. Although laws vary from state to state, proving the validity of a will generally entails ensuring that it was created and signed by the person executing the will, called the "testator," and that it complies with state law. In most states, a will can be prepared in a way that eliminates any additional action on the part of the executor during the probate process.

How to Break a Will or Probate

Probate is court-supervised administration of a testator's last will and testament. Upon the death of the person making the will, the executor files the will in probate court and begins to gather and inventory estate assets. Although the executor is usually selected by the testator and named in the will, the court reviews the procedure to assure honesty, accuracy and fairness. The court only approves a valid will, so anyone wishing to "break" a will or probate must allege and prove facts making the will invalid.

How to Contest a Will if a Person Is Incompetent

Sometimes heirs and beneficiaries react with shock when they learn the contents of a loved one’s will. If dear Aunt Ethel leaves her considerable fortune to her neighbor’s dog, her relatives usually have recourse to alert the court that she was probably mentally incompetent at the time she wrote her will. However, if she left every dime to a human beneficiary other than you, most courts will honor her wishes, at least without compelling proof that she wouldn’t have done so if she’d had all her faculties about her.

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