The Jolly Testator Who Makes His Own Will
Ye lawyers who live upon litigants’ fees,
And who need a good many to live at your ease,
Grave or gay, wise or witty, whate’er your degree,
Plain stuff or Queen’s Counsel, take counsel of me:
When a festive occasion your spirit unbends,
You should never forget the profession’s best friends;
So we’ll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.
He premises his wish and his purpose to save
All dispute among friends when he’s laid in the grave;
Then he straightway proceeds more disputes to create
Than a long summer’s day would give time to relate.
He writes and erases, he blunders and blots,
He produces such puzzles and Gordian knots,
That a lawyer, intending to frame the thing ill,
Couldn’t match the testator who makes his own will.
“Can’t I just write my own will?” The answer is yes, but should you? Probably not. This blog post is not intended to provide legal advice on how to draft and create your own will in Minnesota. You should always consult with an attorney before attempting to create your own will in Minnesota. This post is intended to give the highlights of creating a will in Minnesota and it is NOT intended as a guide to creating your own will in Minnesota.
Statutory Requirements for Creating a Will in Minnesota
In Minnesota, the statutory requirements to make a valid will are found under Minnesota Statutes §524.2-502. That section provides that a will must be:
(1) in writing;
(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction or signed by the testator’s conservator pursuant to a court order under section 524.5-411; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will as described in clause (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.
A Minnesota Will Must Be in Writing
For a valid Minnesota will, the will must be in writing. This is exactly like it sounds. You can’t just tell your family that you want the estate to be split up a certain way, or that you want to disinherit a child. You actually have to put your wishes in writing.
Does a will need to be typed to be valid? No. A will can be in your own handwriting. Keep in mind that you still need two individuals to sign the Will as witnesses as required under paragraph (3) above.
Some states allow for a Will to be written in the testator’s own handwriting and signed only by the testator. These are called holographic wills. Holographic wills do not require witnesses to be valid. Minnesota DOES NOT permit holographic wills.
A Minnesota Will Must Be Signed by the Testator
The testator is the person making the Will. For a Will to be valid in Minnesota, the Will must be signed by the person making the Will. If the person creating the Will cannot physically sign it himself, the Will may be signed in the testator’s name by someone else, so long as the signing is done in the “conscious presence” of the testator and at his direction. What this means is that the testator cannot direct someone to sign his or her Will at some other time. It needs to be nearly immediate, and should be done in close physical proximity to the testator.
A Minnesota Will Must Be Witnessed by Two Individuals to Be Valid
The requirement that two individuals sign the Will is important. As the link to the video at the top of the blog illustrates, having just one witness can invalidate a Will. The Witnesses must sign within a “reasonable” time after witnessing the testator sign the Will. The language obviously leaves room for debate. However, it is prudent for the witnesses to sign the Will immediately after the testator has done so. Lastly, the witnesses to a Will in Minnesota must be competent and the law does not require that a witness be “disinterested”.
The Person Creating the Minnesota Will Must Have Testamentary Capacity
Any person 18 or more years of age who is of sound mind may make a will. In other words, the person creating the Will must understand “the nature, situation, and extent of his property and the claims of others on his bounty” and can do so for long enough to form a rational judgment concerning them. Factors to be considered in determining whether a testator possesses testamentary capacity include (1) the reasonableness of the property disposition; (2) the testator’s conduct within a reasonable time before and after executing the will; (3) a prior adjudication of the testator’s mental capacity; and (4) expert testimony about the testator’s physical and mental condition.
The Minnesota Will Cannot Be Procured Through Undue Influence
A Will may be deemed invalid if it is the product of undue influence. What is undue influence in Minnesota? To invalidate a will for undue influence, a person contesting the will must show that another person exercised influence at the time the testator executed the will to the degree that the will reflects the other person’s intent instead of the testator’s intent. You must have solid evidence that undue influence existed. Conjecture or mere suspicion are insufficient to prove undue influence. Once Court summarized that, “the evidence must show that the influence exerted was so dominant and controlling of the testator’s mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.”
Courts in Minnesota will consider several factors to determine whether undue influence existed, including:
(1) an opportunity to exercise influence;
(2) the existence of a confidential relationship between the testator and the person claimed to have influenced the testator;
(3) active participation by the alleged influencer in preparing the will;
(4) an unexpected disinheritance or an unreasonable disposition;
(5) the singularity of will provisions; and
(6) inducement of the testator to make the will.
There are other grounds for invalidating a Will in Minnesota, including showing that the Will was procured by fraud or that the person creating the Will was under duress (think – undue influence but with unlawful threats or coercion). The above discussion is not intended to be an exhaustive list of every technical requirement for creating a Will in Minnesota. The creation of a valid Will in Minnesota should only be done with the assistance of a Minnesota estate planning attorney. Failing to observe the requisite formalities can result in the Will being deemed invalid and your wishes being ignored. The news today is replete with stories of do-it-yourself Wills gone wrong. Here is one such example: Signature Missing Invalidates Man’s Will.
Contact our office today if you are considering doing your own Will in Minnesota. Oftentimes it is worth spending a little more on an attorney that will give you the peace of mind knowing that your family will be taken care of if you pass away.
Zach Wiegand is a Burnsville, Minnesota estate planning attorney and the owner of Gold Leaf Estate Planning, LLC. Gold Leaf Estate Planning is an estate planning law firm that handles probate and trust administration in Minnesota. We serve the Twin Cities metropolitan area with a focus on estate planning for clients in Burnsville, Eagan, Savage, Prior Lake, Lakeville, Apple Valley, Eden Prairie and the South Metro. The firm also handles probate in Dakota County, Washington County, Scott County, Hennepin County, and Ramsey County. Zach was named a Minnesota Super Lawyer – Rising Star for both 2017 & 2018 and he is a member of WealthCounsel – a national organization of estate planning attorneys dedicated to practice excellence. You can contact Zach via e-mail at firstname.lastname@example.org or by calling (952) 658-6503. Gold Leaf Estate Planning is located in Burnsville at 3000 County Road 42 W., Suite 310, Burnsville, MN 55337.