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Do You Have a Valid Will

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    Wills come in all shapes, sizes and language.  Each attorney has a certain style of how they write a will.  It is not so much what the document says that determines whether it is a valid instrument, but how the document is executed.  Each state, including Maryland, has requirements as to how a will must be executed in order for it to be a valid last will and testament.

The requirements for a valid will in Maryland are:

  • The testator, the person executing the will, must be over the age of 18.
  • The testator must sign the will under no duress or undue influence.
  • The testator must have legal capacity to sign the will.
  • The execution or signing of the will must be witnessed by two people over the age of 18 in front of the testator.

Many times I am asked if a handwritten or holographic will is legally binding.  The answer is yes, a will can be handwritten, but in most instances it still must meet the requirements above.

Let us look at a recent public case of a will dispute.  The artist, Thomas Kinkade, passed away at the age of 54.  His death was unexpected.  He was separated from his wife of 30 years and living with his girlfriend.  He executed a will in the year 2000.  He also executed a living trust.  After the execution of the 2000 will, Thomas Kinkade created two handwritten documents that, if valid, modify the terms of his 2000 will.

What happens now?  All the documents, including the will executed in the year 2000 and the hand- written documents must be presented to the Probate Court and the Probate Court will determine which of the documents are valid and legally binding.

A significant amount of money is at the center of the argument and both parties, the wife and the girlfriend, are adamant about their legal positions.  This battle will most likely go on for many years.

Even though you can prepare and revise your will in your own handwriting, maybe that is not the best course.  An experienced estate planning attorney can help you create an estate plan and help you keep it up to date as changes occur in your life so that your final wishes are honored.

Sinclair Prosser Gasior
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