Montana Law Governing Last Wills & Testaments

By Andrine Redsteer

Montana's Uniform Probate Code governs wills throughout the state. Like other states, Montana mandates specific formalities that must be adhered to during the making of a will. Formalities are important procedures that give wills legal effect; without them, a will maker — called a "testator" — could make a will that is contrary to his actual intent.

Testamentary Capacity

According to Montana law, testators must have testamentary capacity; that is, they must be of sound mind. Testamentary capacity means the acuity to comprehend the amount and nature of the property involved and the significance of executing a will. A testator must also have the ability to recognize his relationship to the individuals receiving bequests of his property. Because minors may not adequately grasp these concepts, Montana requires all testators to be at least 18 years old.

Writing and Witnesses

In Montana, a will must be in writing. This means a testator can either type or hand-write her will. Handwritten wills are called "holographic" wills and Montana recognizes them, regardless of whether they're witnessed. However, for a holographic will to be valid, it's material portions must be in the testator's own handwriting and signed by the testator. Montana requires two competent witnesses to a will. These witnesses must sign the will within a reasonable time after watching the testator acknowledge or sign the will.

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Self-Proving Wills

In Montana, a testator can make his will self-proving. For a will to be self-proving, a notarized affidavit must be executed simultaneously with the will and contain the signatures of both witnesses and the testator. Generally, if a will is not self-proving, one of the witnesses must testify in probate court to verify its authenticity. Thus, making a self-proving will streamlines the process and prevents having to track down witnesses who may have moved to another state.


Montana law allows testators to revoke their wills in a number of ways. A testator may revoke his will by physically destroying it; that is, he may tear it up, burn it or cancel it, provided his intent is to revoke it. A testator may also revoke a will by executing a subsequent will that expressly revokes his prior will. Furthermore, a subsequent will that doesn't expressly revoke a prior will, but has provisions that are substantially inconsistent with a prior will, may have the effect of revoking it.

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Testamentary capacity is perhaps one of the most-cited reasons for challenging the validity of a will during probate, and for good cause. Capacity directly affects a testator’s legal ability to make a will, which is why every state defines strict statutory guidelines describing mental competency. Most states do permit claimants to contest a will on grounds of diminished or lacking testamentary capacity if the testator was under the influence of mind-altering medication. However, medication affects each individual differently, so the courts must examine the testator’s state of mind and the actual effects of the medication on a case-by-case basis.

How Is a Beneficiary Removed from a Will?

When a person is named in a will, he is called a beneficiary. Heirs, on the other hand, are individuals who stand to inherit from a relative who failed to make a will; thus, leaving inheritance division to the laws of intestate succession. Testators, or will makers, may remove beneficiaries from wills by executing specific documents that effectively disinherit the beneficiary -- usually by express terms.

Do Wills Have to Be Handwritten?

Speak with attorneys across the country, and you will likely hear the same advice: most people over the age of 18 should have a will. Without one, state statutes of descent and distribution step in to govern the allocation of assets to survivors. Handwritten wills, also known as holographic wills, are legal and binding in many states. However, each state defines what is acceptable within its boundaries.

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