When a “Will” is Not a Will

Most people think of a “Will” simply as a document that expresses their wishes of who should inherit their property after they pass. However, every state, including South Carolina, has specific statutory laws that impose certain requirements in order for a Will to be valid and enforceable.

If a Will is not validly executed, then it will not be enforceable. If an individual does not have an enforceable Will, their property will be passed on as if they did not have a Will at all, according to intestate laws. Intestate laws determine how an estate is distributed, rather than the individual’s expressed wishes.

Here are a few situations in which a “Will” is not a validly executed Will and will not be enforceable:

The “Will” is written on a napkin.
Simply writing your wishes as to how your estate should be distributed after your passing on a napkin or some other note will not create a valid Will. Handwritten notes signed only by the testator—the person creating a Will—are called “holographic wills” and are not valid in South Carolina.

There are no witnesses.
South Carolina law requires that a Will be signed by at least two witnesses who saw the testator sign the Will or witnessed the testator’s acknowledgement of their signature.

The Will is not in writing.
Merely telling someone how you want your estate to be distributed or even making an audio recording of your wishes will not create a valid and enforceable Will. In South Carolina, a Will must be in writing to be valid.

There is no signature on the Will.
To be valid, a Will must either be signed by the testator or signed by someone else at the direction of the testator. This means that if the testator were unable to personally sign the Will due to some physical limitation, the testator could request another person sign the Will, under the direction of the testator, on their behalf.

The testator’s mental capacity is in dispute.
Under South Carolina law, a testator must be of sound mind at the time they signed the Will in order for the Will to be valid and enforceable. Generally, in determining if an individual was of sound mind at the time of the drafting of the Will, the Court will consider whether the testator understood:

  • the act of creating an estate plan;
  • the extent of their property;
  • their family tree and relationship with family; and
  • who they are passing their property to.

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