In drafting a will, our are always conscious of the fact that the document could be before a court one day, and try to ensure that the language is as clear and unambiguous as possible in express the testator’s intent. In addition to clear language, our legal team will ensure that the so-called “will formalities” are met, without which no court will give effect to the terms of the will. Additionally, our attorneys attempt to ensure that the testator is capable of making a will and that no undue influence exists.
In Alabama, a will should be a signed writing with attestation by 2 witnesses. Attestation means that each witness either saw the testator sign the will or had the signature acknowledged to them before signing it as a witness. If any of the formalities are not present, then the court can throw out the will and the assets of the decedent will be distributed via intestacy. While this sounds relatively simple, there are many cases where there was some sort of problem with a will’s formalities.
The lawyer also needs to ensure the absence of mental incapacity, fraud, or undue influence. Any of these are reasons for a court to throw out a will, and will almost certainly lead to a will contest. The basic idea of will drafting is to ensure that the testator’s intent is given effect, and will contests are to be avoided by careful drafting. However, if a court finds that a testator lacked mental capacity at the time of drafting, it can scrap the entire will. Mental capacity requires that a testator understand the nature and extent of his property, who his heirs are, and the disposition of his property. If the court finds that undue influence existed, then it can throw out the portion of the will affected by such influence. Undue influence basically means that the testator was coerced into adding someone as a beneficiary.
Good will drafting requires thorough consultation with the testator, careful attention to detail, and knowledge of applicable law. The attorneys of Boles Holmes White LLC have years of experience with drafting wills, trusts, powers of attorney, health care proxies, and advance directives. Call us today for a free consultation.