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When is a Last Will and Testament Invalid?

May 10th, 2011

Most attorneys who handle estate matters have seen the following situation:

Client comes to your office for assistance with probating a deceased relative’s estate. You ask to see a copy of the Last Will and Testament. Client produces a Will prepared by the deceased relative (or worse… by the Client himself) and BAM! The attorney recognizes right away that the Will is worthless because it does not meet one or more of Maryland’s requirements under Md. Code Ann. Estates & Trusts Article §4-101 et seq.

The most recent time that this situation happened to me, the Will handed to me was not witnessed by two competent individuals. The only two signatures on the Will were those of the testator and a Notary Public.

Aside from two competent witnesses who signed the Will in the presence of the testator and each other, the Will must have been written by an adult of sound mind. The testator must have signed the Will freely, voluntarily, honestly and at its logical end (that means no signing on page one unless you’ve got a very short Will!)  Finally, a Will is invalid if it was signed by a testator who was being unduly influenced by another person at the time of the Will’s execution.

It is probably best to leave Will drafting up to an experienced attorney.  However, if you insist on preparing your own Will, you should not do so without speaking to an attorney familiar with estate laws in your jurisdiction of residence. If you live in Maryland and have questions regarding Wills or estate administration, please do not hesitate to contact Attorney Kate McDonough at Andalman & Flynn, P.C.