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Last Wills and Testaments

Posted by attorney Mary Anne Vance

A Will is a written statement signed by you and two adult witnesses who do not inherit under the Will. The Will typically names people or organizations who will inherit your assets after your death. It is a good idea to have a notary public also sign the Will. You are free to leave your assets to anyone you choose.

You are not required to leave your estate to your spouse or your children. However, if you decide to disinherit your spouse or children, the Will should name those people and specifically state you wish to leave them nothing. The Will can be creative. You can select certain personal items such as a treasured wedding ring and leave it to a specific person. You can also create a trust so that if your young children inherit, their money will be managed by someone you trust until they are grown. A trust created by a Will is called a Testamentary Trust. (Another type, the Revocable Living Trust, is discussed below.) Usually, parents of young children will also name a guardian to care for the personal needs of their kids.

There is no limit to the number of Wills we can create. The most recent Will is typically the Will that is probated. A difficult issue arises when someone wants to do a Will and they are very ill or aged. The law requires that you have minimum competency in order to sign a Will (as well as a Power of Attorney).

The long existing legal test for competency for Wills is:

  1. Does the person know what a Will is?

  2. Does the person know in general terms what their assets are?

  3. Does the person want to leave their estate to "the natural objects of their bounty"?

If you are in doubt as to whether a person has capacity, a good practice (though not often used) is to have the medical care provider serve as one of the witnesses to the Will. The medical provider knows the person and knows the medical condition of the person. They can sign as a witness and can also sign an additional Affidavit that says that they are aware of the three pronged test for competency, they have discussed each of the three prongs with the person, and they are satisfied that the testator is competent to sign a Will.

It is important to understand that the level of competency required to sign a Will is less than the competency that is required to establish a guardianship. Therefore, even if a person is in a Guardianship, the Court has the power to grant the person the right to create a valid Will.

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