What Makes an Estate Planning Document Valid?

By: Michael Kilkenny

I've heard a number of allegations over the years from clients and their family members that certain documents, such as wills or trusts, are or are not valid. The reasons vary from the document lacking an embossed notary stamp to documents having been drafted by an attorney who isn't practicing anymore.

There are a number of things that make documents invalid. They include situations surrounding the creation of the document, such as duress, undue influence, lack of capacity, and more. This article, however, focuses on the paper documents themselves. What requirements do they have to meet to make them legal and valid?

Generally, there's two types of instruments used in estate planning: a will and a trust.

Requirements for Executing a Will

A will must be

1. in writing,

2. signed by the testator or testatrix (the person whose will it is - testator is masculine and testatrix is feminine) or by someone else at the testator's or testatrix's instruction, and

3. have two adult witnesses sign. Codicils, or changes to wills, must meet these same requirements.

Just because a will meets these requirements doesn't mean a probate official will accept it (remember, a will requires probate to have any effect). There's also a question of evidence. It is always prudent to provide reliable witnesses. It looks suspicious if you disinherit your entire family and leave everything to the neighbor when your neighbor and his wife are the only witnesses!

Requirements for a Trust

The requirements for creating a trust are incredibly low. There are a number of ways to create a trust - a trust doesn't even have to be in writing! All that matters is that:

1. someone (the trustee) is

2. holding on to something (money, goods, property) for

3. someone else (the "beneficiary" of the trust).

Of course, a written trust document (called a 'trust instrument') is certainly better.

The question 'is a trust valid?' is not as important as 'can you prove it?' To prove a trust is valid you might want witnesses to an oral trust, a written trust instrument signed by the grantor, and even witnesses to a written trust instrument.

The best kind of witness is a notary - someone specially commissioned by the State of Wisconsin to be a reliable witness to things, including trusts. If a trust instrument is signed by a notary, there's very little that can be done to prove the trust instrument itself is invalid. It would take other circumstances (such as duress, undue influence, or fraud) to undo the trust.

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