A will is a legal declaration by the testator to bequeath his property to selected beneficiaries upon his death. In this regard, it is important to note that a person may die testate or intestate. Testacy is defined as a condition whereby a person dies and leaves a valid will that determines the distribution of his property whereas intestacy is a condition whereby the owner of an estate dies without a valid will or leaves a will that merely disposes of a part of his estate.
In this regard, it is important to distinguish between a valid and invalid will in order to ensure that the one left behind by the testator is legally enforceable. There are common characteristics that will enunciate the validity of a will and thereby you have to be mindful of such features as you critique any testamentary documents. These characteristics are elucidated as follows;
A will takes effect after death
It is widely known that a testamentary document will only come into effect upon the death of the maker. Therefore, in as long as the testator lives the beneficiaries cannot exercise any rights of ownership on the property. Such characteristic is demonstrated by a clause in the instrument that confers the property to the beneficiaries upon death. Without reference to death then the will cannot be said to be valid. A will that bequeaths property before death is invalid in as far as that gift is concerned.
A will is ambulatory
The fact that a will takes effect upon the death of a testator means that the owner of the estate is at liberty to alter clauses during his lifetime. Similarly, the testator can also revoke the will in favor of a new one or none at all.
A valid will must be witnessed by two or more competent witnesses. A competent witness is defined as an adult of sound mind that does not have any interest in the testamentary document. In this regard, a beneficiary in a will does not qualify as a competent witness. The attesting witnesses must willfully append their signatures after the testator.
This is a legal term that is used to describe the mental aptitude of the person making a will. Different jurisdictions have various requirements regarding testamentary capacity, but the common requirements include the fact that testator has to be a person of a sound and disposing mind. Also, the will must be made devoid of undue influence and duress.