There are several reasons that a will may prove invalid. It is important for testators to be aware of these pitfalls in order to avoid them.
Improper Execution
The State of Louisiana recognizes two types of wills. One is an olgographic will, which must be handwritten by the testator and dated. Those are the requirements to make it valid under Louisiana law. The other will is a Notarial Will, which must be typed, dated, and signed at the bottom of each page and at the end in front of two witnesses and a notary. There is specific language that must be included in a notarial will that’s if not followed will invalid the will.
Lack of Testamentary Capacity
Anyone over the age of 18 is presumed to understand what a will is. At the end of life, individuals are often not in the best state of mind. If court finds that an individual is suffering from dementia, is under the influence of drugs or alcohol, or is incapable of understanding the document being executed for some other reason, the court may invalidate the will on the grounds that the individual does not have testamentary capacity.
Replacement by a Later Will
Whenever an individual writes a new will, it invalidates all wills made previously. This means that a will might be believed to be valid for months until a more recently executed document surfaces. The newest will always takes precedence, controlling how assets should be distributed.
Lack of Required Content
Every will is required to contain certain provisions to carry out its purpose. These provisions, ensure that the testator understands the reason for executing the document. It should be clear that the document is intended to be a will. The document should demonstrate an individual’s wishes in regard to what should happen to his or her property after death. If the document lacks any of these provisions, the will may be declared invalid. I have seen this issue come up the most with olographic wills where the testator writes it themselves and uses wishes and desires type language instead of very specific language bequeathing their estate assets.
Undue influence or fraud
A will that was executed under undue influence, coercion or fraud will be invalidated by a court. If a will has been presented to a testator for a signature as if it were any other document, like a power of attorney or a business contract, the court will find that the will was fraudulently obtained and will not honor it. If an individual providing end of life care with exclusive access to the testator threatens to stop care unless a will is modified, that modification is considered to be the result of undue influence and the court will not accept it.
Chip LoCoco
Attorney at Law
New Orleans, LA
(504) 483-2332
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