Under Alabama law, a person must be at least 18 years old and be of sound mind to make a valid will. See Ala. Code § 43-8-130.
What Is the Standard For Mental Capacity To Make a Will In Alabama?
To make a valid will under Alabama law, the testator must:
- Understand the business and consequences of making a will;
- Remember the property to be devised;
- Remember the persons who are the natural objects of the testator’s bounty; and
- Remember how the disposition of the property is to occur.
Under Alabama law, an adult is presumed to have capacity to make a will. It is the burden of anyone challenging the validity of the will to prove that the testator lacked capacity to make the will when the will was executed.
Can a Power Of Attorney Holder Create A Will For a Testator?
No. There is no provision in Alabama law permitting a power of attorney holder to create a will for a principal. Alabama law does permit an agent to create, amend, revoke, or terminate an inter vivos trust instrument if the power is expressly granted in the power of attorney document. See Ala. Code § 26-1A-201(a)(1). There is simply no corresponding provision allowing the creation of a will by an agent.
Alabama law does allow a person to sign a will for the testator, at the testator’s direction and in the testator’s presence. The agent does not have to be the holder of a power of attorney in order to sign the testator’s name. Ala. Code § 43-8-131.
What Are The Requirements For a Valid Will In Alabama?
In order to make a valid will in Alabama the will must be signed and witnessed.
Signature Requirements
In order to be valid under Alabama law, the will must be signed either:
- By the testator; or
- For the testator by another person signing the testator’s name at the testator’s direction and in the testator’s presence.
See Ala. Code § 43-8-131.
The testator can sign anywhere on the face of the will if the testator signs with the intent of authenticating the will as a completed testamentary act. Most testators sign at the end of the will.
Witness Requirements
Under Alabama law, a will must be signed by at least two witness. The witnesses must each have witnessed either the testator’s:
- Signing of the will;
- Acknowledgement of the signature or of the will (including where the will was signed by some other person in the testator’s presence and by the testator’s direction)
See Ala. Code § 43-8-131.
Any person who is generally competent to be a witness (someone competent to testify about the execution ceremony) is permitted to act as a witness to a will. See Ala. Code § 43-8-134.
Someone named as a beneficiary to the will is permitted to serve as a witness. Ala. Code § 43-8-134.
Does an Alabama Will Have To Be Notarized?
No. A will does not have to be notarized under Alabama law unless the will includes a self-proving affidavit. A self-proving affidavit must be notarized. See Ala. Code §43-8-132.
The purpose of including a self-proving affidavit is to create a presumption that compliance with the signature requirements for a valid will occurred, and that other requirements of execution, such as mental capacity, are also presumed. This does not mean that self-proving wills are immune from attacks on validity, but it does make the will less vulnerable to such an attack.
The best way to make sure that you create a valid will under Alabama law is to work with an Alabama probate lawyer for your estate planning needs.
