How Do I Make a Will?

            Utah Law states that “An individual 18 or more year of age who is of sound mind may make a will.” U.C.A. Sect 75-2-501.  Thus, there are two requirements:  be 18 or older, and of sound mind.  The first requirement is easy to meet and verify.  If there is ever a question about the age of the testator, check a driver’s license or a birth certificate.  The second requirement is usually what ends up in litigation.

            The determination of competency is based on three factors.  The testator needs to understand what the estate plan is doing and how it will be carried out in the documents.  Along the same line, the testator must be able to know the elements and make reasonable judgment based on this knowledge.  This knowledge simply need to be a general understanding and not all the details.  Next, the testator must understand the general nature and extent of their property.  The intake sheet is great evidence of this.  Finally, the testator must recognize the natural objects of bounty meaning they need to understand who their heirs would be at their death.  Again, the intake sheet can help provide evidence of this.

            There are several types of will and they each have their own requirements.  All wills, however, must be in writing as oral wills are not valid in Utah and video wills are not valid as well.  A formal will requires that in addition to the will being in writing and signed by the testator or in the testator’s presence at the testator’s direction.  The formal will must also be signed by at least two witnesses of the testator’s signing either at the time or within a reasonable time after such witnessing.  The witnesses must be over the age of 18 and generally competent.

            Utah Code Annotated Sect. 75-2-502 contains the requirements for a holographic will.    Section (2) states that “A will that does not comply with Subsection (1) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.”  This can be proved by extrinsic evidence.

A writing that fails to meet the statutory requirements for a formal will, self-proved will or even a holographic will can still act a will (or testamentary document) if by clear and convincing evidence it can be shown that the decedent intended the document or writing to constitute a will, an addition or alteration of the will, or a revival of a former will or a prior thereof.

If not properly created and executed, a will has no value other than possible creating a will contest.  For this reason, if you are contemplating drafting a will, contact me or another competent attorney.

http://www.attorneydrew.com

 

 

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