Is your Last Will and Testament Valid?

South Carolina Will Formalities: Legal formalities of a Will are strictly construed and having a Will prepared by an experienced South Carolina estate planning lawyer can deter Will contests, by having the drafting attorney attesting to the capacity of the testator and the Will’s proper execution.

Capacity to Make a Will

A will is only valid if the testator had capacity to make a will at the time of the wills creation. The Code provides that a person has capacity to make a will if they are:

(1) over eighteen years of age or a minor who is emancipated or married and

(2) of sound mind.[1] (S.C. Code Ann. § 62-2-501)

Proper Execution of a South Carolina Will

A will must also be properly executed. The SC Probate code instructs that a will is properly executed if it is signed by the testator and by two witnesses who either (i) witness the testator sign the will; (ii) witness the testator acknowledge his signature on the will; or (iii) witness the testator acknowledge the will.[2](S.C. Code Ann. § 62-2-502.)

Revoking a Prior Written Will

A will can be physically revoked or revoked by a subsequent will, if done with the intent of the testator to revoke.[3] (S.C. Code Ann. § 62-2-506.) The code provides that the intent of the testator (either the intent to revoke a prior will or the intent to supplement a prior will) is presumed in certain situations, and may only be rebutted by clear and convincing evidence.[4] Wills that have been revoked may be revived only under the restrictive conditions outlined in the Code.[5] (S.C. Code Ann. § 62-2-508.)

What constitutes a Will

The SC Probate Code and South Carolina common law determine what constitutes a will. The Probate code instructs that a will “ . . . includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.”[6] (S.C. Code Ann. § 62-1-201(57).)

Incorporation by Reference. Papers not a part of the will, but in existence when the will is executed, may be incorporated into the will by reference.[7] S.C. Code Ann. § 62-2-509.

Personal Property Memorandum – The SC Probate Code also provides for a separate memo to dispose of the decedent’s tangible personal property.[8] (S.C. Code Ann. § 62-1-512.) Additionally, a personal property memorandum affixed to a Will can be completed by the testator after the Will’s execution. This is contrary to the law in many other states like North Carolina, where a personal property memorandum must be in existence at the time the Will is executed.

Several Written Wills – A Will may also consist of several wills, wherein the later neither expressly nor impliedly revokes the earlier will.[9]

 Contact a South Carolina Estate Planning Lawyer at (803) 351-3597 to prepare your Last Will and Testament or assistance with your family Estate Planning.

[1] S.C. Code Ann. § 62-2-501.

[2] S.C. Code Ann. § 62-2-502.

[3] S.C. Code Ann. § 62-2-506.

[4] Id.

[5] S.C. Code Ann. § 62-2-508.

[6] S.C. Code Ann. § 62-1-201(57).

[7] S.C. Code Ann. § 62-2-509.

[8] S.C. Code Ann. § 62-1-512.

[9] See Owens v Fahnestock, 110 S.C. 130, 96 S. E. 557 (1918).