In South Carolina, a Last Will and Testament is an essential legal document that should be drafted as soon as possible. Without a Will, your heirs and beneficiaries will have to wade through the probate process and it could take months, even years, depending on the circumstances. In this article, I will explain the legal requirements for a Last Will and Testament, choice of witnesses to your Will and reasons that may cause a challenge to your Will in South Carolina.
What are the Legal Requirements for a Valid Last Will and Testament in South Carolina?
A Will must meet the legal requirements of South Carolina for it to be valid. The South Carolina legislature, under Code of Laws of South Carolina, Title 62 South Carolina Probate Code, Article 2 Part 5 Section 62-2-502, states:
Except as provided for writings within Section 62-2-512 and wills within Section 62-2-505, every will shall be:
(1) in writing;
(2) signed by the testator or signed in the testator’s name by some other individual in the testator’s presence and by the testator’s direction; and
(3) signed by at least two individuals each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.
Do the Witnesses to My Will Have to be Family Members in South Carolina?
No. While you can choose anyone you wish to have as a witness, it is generally recommended that the witnesses be “disinterested,” meaning they are not an heir or beneficiary of the Will. In South Carolina, an “interested” witness (someone who has been named in the Will) witness does not invalidate the Will.
What are Reasons That Can Cause My Will to be Challenged in South Carolina?
There are a few basic reasons for contesting a Will:
- Challenges may arise based on the mental or legal incapacity of the testator made at the time the Will was drafted. If the testator was under the age of 18 or did not have the mental capacity to understand the provisions of the Will, a challenge may ensue.
- If a Will is not witnessed according to South Carolina law for Wills may be held to be invalid.
- A Will may be challenged on the basis of misbehavior by someone other than the testator.
- A Will can challenge by proving that it was obtained by fraud, forgery, or undue influence. Undue influence is the manipulating of a vulnerable person into leaving all or much of the property to the manipulator and the testator lacked the free will to bargain. For example, if someone forced or coerced you to add or remove people from the Will, the probate court may find it invalid.
A Will prevents your children from spending time, sometimes a lot of time, sorting out your assets and any taxes owed. Distributing your assets to your family as soon as possible after your death will help them to avoid financial difficulties and additional emotional stress. Contact the Watts Law Firm and let’s get started today.