There’s no question that every adult should have a valid will to ensure that their wishes are honored after their death. Most people understand this. But the next question many people ask is, “What are the requirements for a will to be valid?”
That is an excellent question. It is not difficult to make a valid will in Minnesota, but it is easy to make one that is not valid if you don’t understand the requirements. Let’s discuss the requirements for a valid will in Minnesota.
A person making a will, otherwise known as the testator, must be a legal adult aged 18 or older and of sound mind in order to execute a valid will. Under Minnesota law, there are three other requirements for executing a valid will:
Sounds simple right? Unfortunately, it’s not as simple as it sounds. Let’s go over each of those requirements.
What does it mean for a will to be “in writing?” In Minnesota, a typed or printed will counts as a will that is in writing. Handwritten wills, also called “holographic wills,” are not generally considered valid under Minnesota law. However, if a holographic will was executed in another state, and it was valid in the place it was made at the time it was made, a Minnesota probate court may accept it.
Essentially, a writing is one way to record and document the wishes of the person making the will. So what about other types of recordings, such as a video “will?” Unfortunately, a video recording is not acceptable as a “writing” in Minnesota.
The requirement of a signature would seem to be pretty straightforward, but what constitutes an acceptable signature for a Minnesota will is not as obvious as you might think. If the testator personally signs the written will in ink with their name, that, of course, counts as a signature.
But what if, say, the testator is physically incapable of holding a pen? A signature on a Minnesota will is still valid if it was done in the testator’s name, in the testator’s presence, and at the testator’s direction. In other words, if a frail elderly testator told her attorney’s secretary to sign the testator’s name on the will, and the secretary did so in the testator’s presence, the signature would be acceptable under Minnesota law.
Under very limited circumstances, another person can validly sign a testator’s will without the testator’s direction. A conservator is a person appointed by the probate court to manage the financial affairs of someone who lacks the legal capacity to do so themselves. After having received court approval, a conservator may sign a will on behalf of a person subject to conservatorship.
These days, much business, including legal business, is being conducted remotely using electronic signatures. Is an electronic signature valid on a Minnesota will? The law of electronic signatures, and electronic wills, or “e-wills,” is still developing across the country. However, as of this writing, Minnesota does not recognize e-wills or electronic signatures on wills, though other legal documents may be signed electronically.
A valid Minnesota will requires at least two witnesses. Each witness must sign the will after witnessing the testator sign the will, or witnessing the testator acknowledge the will or the signature on the will. Traditionally, of course, witnessing a will required being in the same room with the testator. Now it is possible to observe an act by videoconference from across town or across the country. This may be the wave of the future, but witnessing a will via technology such as Zoom or Skype is not valid under Minnesota law.
Many people are surprised to learn that having a signature on a will notarized is not sufficient to meet the witness requirement if there is not a second witness. A Minnesota will may be validly witnessed by an “interested” witness—that is, someone who stands to benefit from the will they are witnessing. However, most Minnesota estate planning attorneys agree that it is a better practice to use disinterested witnesses if possible.
It is really not enough to have a valid will. What most people want is a will that is so clearly valid on its face that no one is even tempted to challenge it. Will contests are costly, time-consuming, and create rifts in families. By the time a will is declared valid in court, irreparable damage may already have been done.
It is impossible to guarantee that a last will and testament will never be challenged, but there are things you can do to minimize the risk. One is to execute a “self-proving” will. A self-proving or self-proved will contains a notarized affidavit of the testator and witnesses, attesting to the fact that the will was freely and voluntarily executed by the testator.
It’s also a good idea to review your will every few years and update it if necessary. If you have moved to Minnesota from out of state, you may want to execute a new will to be certain that it complies with Minnesota law.
If you have questions about how to make a valid will in Minnesota that were not answered in this blog post, we invite you to contact Mundahl Law to schedule a consultation.