I received a message from someone this week whose husband had passed away seven years earlier leaving a Will that gave all his worldly possessions her. However, she never had the Will probated. I’m not sure what circumstances caused her to ask this question, but she wondered whether it was possible for her to now rewrite her husband’s Will.
The short answer is no.
A Will is an important document. It allows someone to specify how and to whom their assets will be distributed at the time of their death. In order for a Will to be valid, the testator (the person writing the Will) must have legal capacity, testamentary capacity and testamentary intent.
- To have legal capacity, the testator must be 18 years or older, or have been lawfully married, or be a member of the armed forces of the United States.
- Testamentary capacity requires that the testator be of “sound mind.” That typically means that they have the mental ability to understand they are making a Will, the effect of making a Will, the general nature and extent of their property, and the people who are the natural objects of their affection.
- Testamentary intent requires that at the time the testator signed his Will, he intended the Will to dispose of his property in the way the Will specified.
If a testator has legal capacity, testamentary capacity and testamentary intent, then certain formalities must be followed for a Will to be valid depending on whether the Will is an attested Will or a holographic Will.
- An attested Will must be signed in writing by the testator, or another person at his direction and in his presence, and attested in the presence of the testator by two witnesses over the age of 14.
- A holographic Will must be written completely in the testator’s own handwriting and signed by him or her. There is no requirement that it be signed by any witnesses.
The key point I’m trying by providing all this information is that it is the testator who is able to dictate what happens to his or her own property. During his lifetime, the testator can amend or revoke the Will.
But once the testator dies, no changes can be made because only the testator can make change to his own Will