A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed.
If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed… and to whom.
A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
In Delaware, the laws regarding the valid execution and witnessing of a Will are set forth in the Delaware Code, Title 12 Decedent’s Estates and Fiduciary Relations, Part 2 Wills, Chapter 2 General Provisions, Subchapter 1 Tenets and Principles, Sections 201 through 203; and Part 4 Administration of Decedent’s Estates, Chapter 13 General Provisions, Section 1305.
In Delaware, any person eighteen (18) or more years of age who is of sound mind may make a Will. (See: Section 201) “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
A Will must be in writing, signed by the testator and by two witnesses. If the testator cannot physically sign his name he may direct another party to do so. This party may not be one of the witnesses. Each witness must sign the Will in the testator’s presence. (See: Section 202)
In Delaware, any person generally competent to be a witness may witness a Will. Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not beneficiaries of the Will. However, in Delaware a Will is not made invalid or any provision of it if it is witnessed by an interested witness. (See: Section 203)
If a Will’s authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will the testator and the witnesses must swear in an affidavit before a notary to the authenticity of the Will. The affidavit should be part of the Will or attached to it. (See: Section 1305)