What are the Requirements for a Will to be Valid in Massachusetts?

Age – The Testator Must be at Least 18 Years Old

Massachusetts law requires that a testator (the person making the will) be at least 18 years of age.[1]

The Writing Requirement

In Massachusetts, a will must be in writing in order to be valid (a couple of exceptions exist; “oral” wills are valid if made by an active service member or a mariner at sea).  Thus, if a person tries to dispose of his or her property by making a video for property disposition, such video does not constitute a valid will.

The Signing Requirement

In order for the will to be valid, it must either be signed by the testator, or signed by someone else in the testator’s presence and at the direction of the testator (if the testator is not able to sign the will themselves).

The Witness Requirement

Massachusetts requires that two people actually observe the testator signing the will, or that these people witness the testator’s acknowledgement of the will.

Additional Will Conditions and Requirements

“Transfer” Requirement

The purpose of a will is to effectuate a transfer of all of a testator’s property at death.  Thus a will must have language that specifies that a transfer of assets is to be made in order to be effective.  Typically, words like “give”, “transfer”, “bequeath”, “devise” or similar types of words are commonly used.  If a “will” simply lists assets and people, but does not state a conveyance of assets to people, it probably will not be valid.

Mental Capacity – The Requirements for being of “Sound Mind”

In the movies and on TV, those making wills commonly start off with a statement about being “of sound mind and body” (or words similar to that effect).  Contrary to popular belief, a person can create a valid will when their body is not “sound”, and even when they are experiencing a cognitive disease, such as Alzheimer’s.

In Massachusetts, and in most other states, there are two key questions to be considered when determining whether a person was competent when making a will –

  • Does the person understand the nature of their estate (such as the assets that they own), and
  • Does the person understand that by making a will, they are thereby providing for the distribution of their estate, as well as to whom they are bequeathing certain of their assets?

If the answers to both of these questions is “yes”, then it is likely that the person will be deemed to have been competent in making their will.

Understanding the Nature of their Estate

To meet this requirement, a person does not necessarily need to understand every single aspect of the assets that they own.  As an example, a person may generally know that they have stock investment accounts.  They do not need to know the exact stocks that are owned in such accounts, or even the precise value of such accounts.

Similarly, a person may know that they own a specific piece of real estate.  They don’t need to know the current market value of such property in order to provide for the distribution of the same in a will.

The Purpose of a Will – Naming Those Who Will Inherit Property and Assets

When a person creates a will, they must be of sound mind in order to appreciate that they are providing for the final distribution of their property, and who (in general) will be inheriting their property.  A grandfather, for instance, may wish for a specific amount of money to be divided equally among each of his grandchildren.  The grandfather does not need to know all of the names of his grandchildren, and it’s possible (maybe even likely), that additional grandchildren will be born after the will is executed.

Requirement that the Testator Not be Subject to “Undue Influence”

“Undue influence” is one of the ways that an otherwise valid will may be found to be invalid.  Whether a person was under “undue influence” when executing a will is a matter for a court to determine, in the event a will contest is initiated.  If undue influence is found, then a will may be invalidated.

Does a Will Need to be Notarized in Massachusetts?

No.  A will does not need to be notarized in Massachusetts in order to be valid.

[1] https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B/ArticleII/Section2-501