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Invalidating a Will “For Lack of a Testator”
The touchstone of the law of Wills is to honor the Testator’s intent. So, for example, RCW 11.12.230 provides:
| All courts and others concerned in the execution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought before them. |
Practically speaking, in order to honor the Testator’s intent, one must ensure that:
- The Testator him/herself has one foot in reality, and
- The Testator’s understanding of his/her circumstances in the making of a Will is also grounded in reality.
The general theme of all of these circumstances described on this page is that in the making of his/her Will, the Testator was “not present” or, if present, “not in touch with reality.” If this were a contract situation, we would say that there was “no meeting of the minds.” This lack of presence can be due to a variety of reasons, for example:
- Solely to the Testator for “innocent” reasons, such as:
- Lack of mental (testamentary) capacity or
- Presence of insane delusions.
- To both the Testator and one or more other persons for “innocent” reasons, such as:
- Mistake — the Testator innocently and affirmatively believed something that is untrue and impairs his/her Will.
- Solely to one or more other persons for intentionally harmful reasons, such as:
- Fraud:
- In the execution of the Will — a third party made intentional misrepresentations resulting in the Testator’s signing a document that is not “his/her Will.”
- In the inducement of the Will — a third party made intentional misrepresentations inducing the Testator to make a Will providing for gifts he/she wouldn’t otherwise have made.
- Restraint (Duress) — a third party coerced the Testator by physical compulsion or threat-induced fear, taking advantage of the Testator’s inherent weakness or helplessness.
- Undue Influence — a third party unfairly persuaded the Testator, taking advantage of his/her superior status gained as a result of being in a fiduciary or confidential relationship with the Testator.
- Forgery — the Testator was not present in fact.
A forthcoming section of the website will explore further society’s efforts to ensure that a Testator’s intent is held sacred and protected, and how a testator’s Will may in fact be invalid if that intent has been sacrificed.