As a general rule, the basic elements that must be present for a valid will to exist, however, with the caution of incorporating them in accordance with state laws, are the following:
1. Must have been executed with testamentary intent. In other words, it would have to be the intention of the party making the will (testator) to make the document their last wish and that wish must be expressed and declared.
2. The testator must have had testamentary capacity. That is, it must have had the ability, at the time the will was drawn up and executed, to do what it intended. In other words, did he or she have the ability at the time to understand and appreciate the effects of their act or act?
3. The execution, assuming capacity, must be done by the testator’s own will, that is, without undue influence, coercion or the like.
4. It must have been duly executed and comply with legal requirements. A will cannot be accepted for probate if it is not “properly executed.”
A will, although accepted for probate, can be canceled or annulled by a “testament contest” if it was executed as a result of fraud, undue influence or duress or if the testator lacked testamentary intent or ability. The local probate court rules will contain the procedures for raising the question (such as a challenge or petition to vacate the will). An action to revoke or annul a will can be brought by a party to the will or a party who feels they were unfairly excluded from a will.