Wills are estate planning legal documents in which an individual, known as a testator, designates the way in which they want their property distributed upon their death. Both real property and personal property may be disposed of in a will.
Although the requirements for a will vary by state, there are general requirements a will must meet in order to be valid. In most states, a will must include each of the following elements to be legally enforceable:
- It must be in writing;
- It must be signed by the testator;
- It must be witnessed by at least two or more competent witnesses. Generally, the witnesses may not be interested, or named in the will or otherwise have a stake in the will; and
- The testator must have testamentary capacity at the time the will is created and signed. Testamentary capacity is usually met if the testator is above the age of eighteen, is in the military, or is legally married, and is aware:
- They are creating a will;
- The will is intended to distribute their property upon their death;
- They understand the property that they are distributing; and
- They understand the individuals who are receiving the property.
Although it is not usually a requirement, it is advised that a will also be dated. By dating the will, there will be less confusion about which is the most recent will should multiple wills be created.
If a testator is unable to sign their will with a typical signature, such as if they are unable to use their hands, they are permitted to leave a mark as their signature. The witnesses to the will may also attest that they witnessed the signature and it is, in fact, that of the testator.
As noted above, these requirements can vary depending on the state in which the testator resides and what type of will they are creating. For example, if the testator is creating a holographic will, it usually does not have to be witnessed, so long as the will is both written and signed by the testator. It is important to seek the advice of an attorney to ensure a will is valid and enforceable.
What is Will Distribution?
Will distribution is the manner in which property in a will is transferred to other individuals through the valid will document. In most cases, will distributions are made in the following order:
- Surviving spouse;
- Immediate relatives;
- Distant relatives; and
- Close friends.
The recipient of a will distribution is called a beneficiary. Any individual may be named as a beneficiary in a will, even if they are not related to the testator. Certain organizations can be beneficiaries in a will. For example, if an individual distributes part of their estate to a charitable non-profit organization.
In the will document, the testator should clearly identify the property to be distributed as well as the individual that will receive it. In some cases, a testator may make a distribution to a category of individuals, such as “my children” or “my siblings.” This is an acceptable form of naming a beneficiary, so long as it is not confusing or does not cause difficulties with the will distribution. It is generally better to name individuals specifically in a will.
A will distribution is distinguished from other forms of property distributions, including probate distribution or inter vivos gifts. The majority of will contest lawsuits stem from will distribution issues.
A will contest generally involves the recipients, or beneficiaries, disputing the various terms of the will. To contest a will is to challenge the authority or validity of the will, as well as the provisions contained within the document.
Contesting a will often results in a legal battle between beneficiaries. Common examples of will contests may include:
- A dispute regarding which family member is entitled to what specific property;
- A disputes over the amount of money that is to be distributed to a specific person;
- A conflict over a specific item, such as an heirloom;
- A conflict as to whether a person is actually entitled to receive an inheritance; or
- Various other types of disputes, which generally involve the testator’s intentions.
An individual will likely contest a will when they feel that they are being cheated out of what the testator intended for them to receive or what they feel is their rightful inheritance. The individual may believe that the distribution is unfair or otherwise not in accordance with the testator’s actual wishes or intentions.
What if I Have a Dispute Over a Bequest?
A bequest is the transfer of personal property which is accomplished through a written will instrument. A transfer of real property is known as a devise. A transfer of personal property is known as a bequest.
The creator of the will, or the testator, will write specific instructions regarding when an individual can obtain the property included in the bequest. For example, a testator may include instructions such as, my niece shall receive my brown Italian leather jacked when or if she finished college.
A bequest may be conditional, which means it is dependent on the fulfillment of a condition. A bequest may also be executory, which means it is dependent on the occurrence of a future event. Due to the personal nature of a bequest, it may be subject to various types of disputes or challenges.
What are Some Common Bequest Disputes?
Common types of bequest disputes may include:
- A dispute between individuals who are each claiming that they are entitled to the same piece of property;
- A dispute regarding the amount of money to which a beneficiary is entitled;
- A dispute over which property an individual is entitled;
- Confusion regarding particular instructions in the will; or
- A dispute over the conditions that must be fulfilled in order to receive the property.
For example, a recipient of a bequest may initiate a dispute regarding the requirement that they must complete college at a university prior to receiving their bequest. They may have questions regarding the type of institution they are required to attend. This issue highlights the need for bequest provisions to be written clearly and precisely in a will.
How are Disputes Over Bequests Resolved?
A will contest and other similar types of disputes are handled through probate court proceedings. These proceedings often take quite a bit of time as a court is required to review various property items, documents, or assets that may be in dispute. Typically, the court will follow the instructions in the written language contained in the document.
However, there are some cases in which a court may be required to re-write or re-word portions of a will, especially if they do not make sense or they lead to an illogical distribution. The manner in which a bequest is finalized may ultimately hinge on a court’s interpretation of the surrounding circumstances.
Do I Need a Lawyer for Help with a Bequest Dispute?
Yes, it is essential to have the help of an experienced probate lawyer with any bequest disputes you may have or disputes in which you may be involved. Disputes over bequests in a will can be very complex and may take many years to resolve. This is especially true if multiple parties are involved or there is a large amount of property at issue.
A lawyer can review the will and other documents that relate to the bequest dispute and advise you how a court will likely interpret or resolve the issue. Your lawyer can also represent you in court, should it be necessary for a court to resolve the dispute. Having a lawyer on your side may be the difference between receiving your bequest or losing out.