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When Can a Will Be Declared Invalid?

By Lane V. Erickson, Idaho Estate Planning Attorney

If you have read any of the articles on this website, you know that we are proponents of getting your own estate planning done. This would include getting a last will and testament completed as part of your estate plan. 

The purpose of a last will and testament is to deal with your “stuff” after you die. Your “stuff” includes all of your money, property, and other assets. To do this, in your last will and testament you have the ability to first declare who will be appointed as your personal representative. This person is required to then complete and fulfill all the instructions that you put in your Will. 

Additionally, in your Will you have the ability to identify who your beneficiaries are. Most importantly, your Will is the place where you get to say what each of your beneficiaries will receive. You have the ability to declare who specifically will receive your money, your real property, your vehicles, your jewelry, your guns, your valuable coin collection, as well as any other specific items you own. You also have the ability, if you choose, to disinherit a child or some other person from your estate. 

Sometimes people are not happy with what a Will says. For example, if a father disinherited his daughter from receiving any portion of his estate, the daughter will likely not be very happy about it. Likewise, if a parent treats children differently giving more of their estate to one child, or alternatively leaves the entire estate to a stepmother, and leaves nothing to the children, the children will likely not be very happy about that either. Whatever the reason may be, I often have people who come to me and ask whether they can challenge the Will and have it declared to be invalid. 

If a written Will is declared invalid, and there is no other written Will that exits, then Idaho’s intestate statutes kick in. These statutes determine first, who will be in charge of the estate as the personal representative, and second who will be the heirs or beneficiaries of the estate that will receive the decedent’s money, property, and other assets. Because of this, there are many instances where children are motivated to have the written Will declared invalid.

The purpose of this article is to describe when a Will can be declared invalid. Keep in mind that this article is just a summary of the law that exists in Idaho. If you have specific questions or concerns, we encourage you to contact us for a free 30-minute consultation where we can answer your questions and help you with your specific needs. 

Lack of Capacity

The first way that a Will could be declared to be invalid is when the person who created the Will lacked capacity. Capacity is a legal word that lawyers use that simply means the person has the legal ability to create a valid written Will. 

To have capacity, the person must be an adult. In Idaho this means they have to be 18 years of age or older. Anyone who meets this requirement is normally able to create a valid Will. 

However, in addition to being an adult, to have capacity, the person also has to fully and completely understand what it is they are doing. A person could be an adult but also be handicapped or disabled. If this is the case and the person is not able to understand the significance of making a Will, then this person lacks capacity and cannot create a valid Will. 

Most adults have capacity and are able to create a written Will. However, the most common issue about capacity occurs when a person who has capacity starts developing problems. This usually happens later in life. This could be some sort of dementia such as Alzheimer’s disease. Alternatively, an adult who had capacity could suffer a stroke, or some other type of illness, or injury that changes their ability to communicate, function, and sometimes even understand what is going on in the world around them. It is in these instances that determining whether a person had capacity becomes the issue. 

If a person with Alzheimer’s creates a written Will, it is possible that their Will could be challenged. If at the very moment the person was signing the Will they understood what it was their written Will did, even if they do not remember anything about it later, then courts will usually find that there is capacity. However, if the evidence that exists shows that the person truly did not understand what the Will accomplished, then the Will will likely be declared to be invalid.

Every formal written Will in Idaho has two witnesses sign it. The purpose of these two witnesses is to testify about the capacity of the person who signed the Will. In other words, they are required to say that they were in the room with the person who signed the Will, they saw how this person acted and how they talked, and in their opinion the person did have the capacity to enter into a valid written Will. 

Additionally, most formal written Wills have a notary as well. This is a third person who saw not only the individual sign their Will but also the witnesses sign it too. They can also act as a witness to describe whether the individual had capacity or not. Because these types of witnesses exist, it is usually very difficult for a Will to be declared invalid. 

Undue Influence

This is where the next issue comes up which is whether there was any undue influence involved in the creation and signing of the Will. Undue influence is a word lawyers use that simply means the individual was forced to do it even though they did not want to. 

The most common example of undue influence is when you have an elderly person who is feeble. They are usually presented with a written will that was created by a child or grandchild or some other person. Then there is usually either physical, emotional, or mental pressure applied to the individual requiring them to sign the Will. 

Evidence of undue influence exists when the person who signs the Will is not even given the opportunity to read it. More importantly, there should be no instances where a third-party presents a written Will to an individual to sign. Rather, that individual should be involved in the process of the creation of the Will itself. 

When evidence exists that undue influence was applied in order to get the Will created or signed, then that Will is invalid. A court hearing this evidence will simply declare the Will to be invalid. 


A final way that a Will may be invalid is if it was revoked by the person who created it. Revocation of a Will can happen in many different ways. First, the person could create a new written Will that replaces any existing or prior Wills. 

Second, a person could revoke their Will by simply destroying it. They could do this by burning it or wrinkling it up and throwing it in the garbage, or by tearing it up, or scribbling it out with a pen. These and any other ways that a person physically shows that they no longer want this to be their Will, could be used as evidence to show that the Will was revoked. 

If you have questions or concerns about whether a written Will is valid, we can help. We have assisted numerous clients in the creation of valid Wills, and we have also been involved in litigation to determine whether a Will is valid. We have used our experience and knowledge to help numerous clients with these kinds of issues and we are confident we can help you too! 

Enlist An Idaho Estate Planning Attorney To Help You

  Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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