An heir is a person that would have received the decedent's property should there be no Will and the property passes via intestacy laws. Old law required the same capacity as when signing a contract.īoth a Last Will and Testament and a trust can be challenged by an interested person, meaning heirs, devisees, children, beneficiaries, the Trustee, or any other person with a property right in the trust or estate. In order for a trust to be validly executed in South Carolina, the same capacity standards as those of a Last Will and Testament are now required.
More generally, the testator must also understand that he is signing a Will, and not some other document. Of sound mind has been defined by the South Carolina courts to mean the testator: (1) has a general idea of the property he has an interest in (2) who the natural objects of his bounty are and (3) to whom he wishes to leave his property. In order for a Last Will and Testament to be validly executed in South Carolina certain conditions must be met: the testator must be 18 years of age or older, the Will must be in writing, the Will must be signed by the testator and two disinterested witnesses, and the testator (meaning you) must be of sound mind. The following is a brief explanation of South Carolina validity laws relating to Wills and Trusts and my suggestions to help mitigate factors your beneficiaries might attempt to argue in a Court. One of the biggest threats to your estate plan, especially as you grow older, is a challenge to your Last Will and Testament and/or your Living Trust Agreement, most likely by your children, contesting the validity of either document on the grounds of undue influence, incapacity, or both. Avoiding Will and Trust Challenges and Resulting Probate Litigation
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