Did you know that there’s more than one type of last will and testament? Having a current, valid will is a vital part of avoiding Family Malpractice™ and ensuring your wishes are carried out after you’re gone. The right type for you depends on your individual and family circumstances. In this article, we’ll look at different types of wills and the circumstances each kind is best suited for.

Note: This list does not include a living will, aka health care proxy or advance health care directive. A living will records an individual’s wishes for medical and health care while they are alive but unable to make decisions about their own care. In contrast, a last will documents an individual’s wishes for how to dispose of their estate and only comes into effect upon their death.

Types of Formal Wills

A “formal will” is one that is written down and which the testator has signed in the presence of witnesses. There are several types of formal wills, including the following:

• Simple will
• Personalized will
• Joint will
• “I love you” will
• “Brady Bunch” will
• Pour-over will

Let’s look at each in turn.

What is a Simple Will?

A simple will is the most straightforward kind of will. It contains the essential parts of a will, including the declaration of the testator, nomination of a personal representative (aka executor), and instructions on distributions to beneficiaries. If you go the DIY route and get a fill-in-the-blanks will online or from a store, it’s likely a simple will without much flexibility to address unique circumstances.

A simple will is a good choice for: Individuals with no assets and no family.

Many people come to our law offices asking for a simple will, but that’s not what they need. A true “simple will” is exceedingly rare. That’s because the kind of person it’s ideal for – someone with no assets and no family – is unlikely to get a will in the first place.

A “simple will” is a misnomer because there’s nothing simple about it. Say you want to leave everything to your spouse, but what if your spouse predeceases you? What if you want to then leave everything to your minor children but you have no trust to hold their assets? How will assets be divided if you and your spouse have children from previous partnerships? Who should take guardianship of your minor children? And so on. Matters go from simple to complex quickly when considering matters of inheritance.

For most people, a standardized simple will doesn’t cut it; what they really need is a personalized will.

What is a Personalized Will?

There isn’t a standard term for a will that’s more complex than a simple will, so we will call it a personalized will, or a custom will. This is a will that’s drawn up by an attorney and is tailored to the individual to reflect their unique life circumstances, family dynamics, estate size and complexity, and wishes. While many people come into our offices asking for a simple will, what they really need is a personalized will.

A custom will can do more sophisticated estate planning than a simple will because it’s more flexible and tailored to you. For example, this kind of will might include testamentary trust provisions (to outline terms of a trust that may be established upon the testator’s death), employ strategies to protect assets and avoid unnecessary taxes, detail contingency planning for various scenarios, and much more.

A custom / complex / detailed will is a good choice for: Individuals with family, especially minor children or other dependents and/or larger or more complex estates and/or complicated family dynamics.

What is a Joint Will?

A joint will is one document containing the last wishes of multiple people. In practice, it’s most often used for couples, but theoretically three or more people could share a single joint will. These were much more common in the past but have now fallen out of favor.

A joint will is a good choice for: Nobody.

Here at the Gem McDowell Law Group, we do not draft joint wills, and we advise against them. That’s because they are inflexible; in South Carolina, after one spouse dies, the terms of the joint will cannot be changed. This means the surviving spouse must abide by the terms of the joint will, even if circumstances change through subsequent marriage, stepchildren, or other major life events.

Some states do allow for the revocation of a joint will after the death of a spouse. However, we still don’t recommend this type of will when there are better options available, such as the “I love you” will.

What is an “I Love You” Will?

An “I love you” will is a reciprocal will often used by spouses where the language is the same in each partner’s will except for the names being flipped. Each partner leaves their estate first to their spouse and then, if their spouse predeceases them, to their children. Couples who may have chosen a joint will in the past may choose an “I love you” will now, as it’s more flexible and allows a surviving spouse to change the terms of the will as needed.

An “I love you will” is a good choice for: Married couples with no children or with shared children (i.e., no stepchildren) who are on the same page and who trust each other. Read more about whether an “I love you” will is right for you here.

What about couples on second or subsequent marriages with children from previous partners? We find that an “I love you” will doesn’t adequately address the needs of blended families, but a “Brady Bunch” will does.

What is a “Brady Bunch” Will?

This is not a common term but one we use in our practice to describe wills that can best handle the needs of blended families which includes children from previous relationships. This is where issues of inheritance can become complex. For example, does each partner leave an equal share to all the children, or a larger share to their biological children? Does each partner leave their full estate to the surviving spouse, or divide it between their spouse and children? These are the types of issues that need to be discussed first, preferably with an attorney who has experience creating estate plans for blended families.

A “Brady Bunch” will is a good choice for: Married couples where one or both spouses has children from a previous marriage or partnership.

What is a Pour-Over Will?

A pour-over will is a particular type of will that directs all the testator’s assets to “pour over” into a previously established trust. Unlike the other kinds of wills discussed so far, this kind of will is not used on its own, but as part of a larger estate plan usually created to avoid probate.

A pour-over will is a good choice for: Someone with a large or complex estate who wants to avoid probate. It’s essential to work with an experienced estate planning attorney to ensure the pour-over will and existing trusts work together.

Other Kinds of Wills

The two types of wills here – holographic and nuncupative, or oral – are rare. They’re included on this list because you may have heard these terms and wonder what they mean, but we do not recommend depending on these types of wills for your estate plan.

What is a Holographic Will?

From the Greek words “holos” meaning “whole” and “graphos” meaning “written,” a “holographic” will is one that is wholly written and signed by the testator in their own hand without any witness or notary. The absence of any witness or notary is what differentiates a holographic will from a handwritten will, which is any will written in the testator’s hand.

The validity of holographic wills varies greatly by state. Only a handful of U.S. states permit holographic wills for anyone, while some states allow them only for certain individuals in certain circumstances, such as members of the Armed Forces. Some states, including South Carolina, don’t recognize holographic wills.

 A holographic will is a good choice for: Nobody.

A holographic will is never a “good” choice, as they are difficult to validate and are more likely to be contested in court. However, it might be the last and only resort for someone in exigent circumstances, such as a soldier on the battlefield facing possible death.

What is a Nuncupative Will, aka Oral Will?

A nuncupative will (from the Latin “nuncupare” meaning “to declare”), or oral will, is one that is not written down but instead is spoken in the presence of witnesses. It is very rare and only allowed by some states and in some circumstances. For instance, some states allow nuncupative wills if the testator is a military member in armed conflict or if the testator is on their deathbed, and only for personal property.

A nuncupative will is a good choice for: Nobody.

As with a holographic will, an oral will or nuncupative will should be a last resort as it’s hard to enforce and much more likely to lead to confusion and litigation than a formal will.

Get a Will That’s Right for YOU and Your Circumstances

A last will is arguably the single most important estate planning document you can have. It’s the best way to ensure your wishes regarding your estate and your dependents are carried out after your death – but only if it’s tailored to your family’s needs and your unique circumstances.

For help creating or revising your South Carolina will, call estate planning attorney Gem McDowell at the Gem McDowell Law Group. Gem and his team will create a will just for you, whether you need a straightforward simple will or a highly customized will that addresses complex estate questions and complicated family dynamics. They can also help you with other estate planning documents like living wills, powers of attorney, trusts, and more, for a comprehensive estate plan that reflects your wishes.

Schedule your appointment or free consultation at the Myrtle Beach or Mount Pleasant, SC office by calling 843-284-1021 today.

Undue influence is one of the most common reasons a last will may be found invalid in South Carolina, along with procedural errors and lack of testamentary capacity. (Read more about all three on our blog here.) When someone pressures or coerces the testator – the person making their will – to create or change the terms of the will in their favor, that’s undue influence. A will that’s the result of undue influence can be voided by the court.

But having a will declared invalid isn’t easy. There’s a presumption that a will is valid, as long as the testator was of sound mind and followed the correct procedures when executing it. In South Carolina, if someone wants to challenge the validity of a last will on the grounds of undue influence, the burden of proof is on the person challenging the will.

This can be difficult because, in the words of the South Carolina Court of Appeals in Gunnells v. Harkness, “our courts have recognized that ‘the evidence of undue influence will be mainly circumstantial’ because undue influence is often exercised behind closed doors, preventing any direct proof.”

With this in mind, how difficult is it to show undue influence, and what does it take to convince the court to set aside a will?

What Undue Influence Looks Like

As stated above, there’s rarely direct evidence of undue influence, such as video or audio recordings of the influencer coercing the testator to change their will. But there are behaviors that indicate undue influence, and that’s what the court looks for.

Influencers may use force, threats, and psychological or emotional manipulation to get what they want. Isolating the testator from friends or family members is a common tactic used by influencers. Threatening to restrict visits from children, grandchildren, friends, and other loved ones is another.

In many cases, the testator is older and the influencer is younger, which can create a power imbalance. The testator may be experiencing cognitive decline that makes them more susceptible to pressures of undue influence. Or they may be dependent on the influencer for their health and well-being, relying on them for food, medication, transportation, and so on. The influencer may be a child who seeks to have the testator leave their entire estate to them and disinherit other would-be heirs, or a caregiver or other individual who is close to the testator.

Courts also look for evidence of a fiduciary relationship between the two parties, which is where one party places special trust and confidence in the other. The existence of such a relationship creates a presumption of undue influence.

Case in Point: Gunnells v Harkness

Since the evidence is typically circumstantial, and the burden of proof is on the party challenging the will, what kind of evidence is needed to prove undue influence when contesting a last will?

In a case heard by the South Carolina Court of Appeals in June 2019, Gunnells v. Harkness, a disinherited child successfully challenged the validity of her deceased mother’s last will on the grounds of undue influence. We’ll look at the evidence closely to see just how much was needed to convince the court that the will was invalid.

Here’s the background. Helen B. Gunnells (Helen) and her husband Aiken Arden Gunnells (Arden) were married for many years and had three children, Glenn, Cathy, and Belinda. In 2006, Helen executed a last will and testament that left her estate to her husband Arden, or, if he did not survive her, in equal parts to the three children.

In March 2013, Glenn moved in with his parents to help care for them, and in June, Arden died. Less than a month after Arden’s death, Helen executed another will, with the help of a lawyer suggested by Glenn. In contrast to the 2006 will, the 2013 will left the estate to Glenn and cut out Cathy and Belinda entirely.

Helen died the following February. Glenn applied for informal probate of the 2013 will, a process in which the estate is probated without any involvement from the court.

Challenging the Validity of the Will

In July 2014, Cathy filed a petition opposing probate of the 2013 will, arguing it was the result of undue influence. The probate court held a hearing in March 2016 in which it heard testimony from several parties. It ultimately determined that the 2013 will was indeed the product of undue influence and was voided. The 2006 will, which left Helen’s estate in equal shares to all three of her children, was reinstated.

Glenn appealed the probate court’s decision to the circuit court, which affirmed the probate court’s decision in April 2017. He appealed again, and the case was heard by the South Carolina Court of Appeals in June 2019.

Proving Undue Influence

In its opinion, the SC Court of Appeals cites previous cases to set the bar for undue influence:

“The undue influence necessary to invalidate a will must reach a level of force and coercion, not ‘the influence of affection and attachment’ nor ‘the mere desire of gratifying the wishes of another.’”

If you believe a family member’s will was the result of undue influence and you want to have it voided, pay attention to the amount and the type of evidence presented in this case for an idea of what it takes to successfully prove undue influence.

In this case, the evidence supporting the existence of undue influence primarily came from Helen’s brother Brantley, Helen’s close friend Carroll, and her daughters Cathy and Belinda.

Concerns about the will

• The 2013 will is substantially different from the 2006 will; while the earlier one left her estate in equal parts to all three children should her husband predecease her, the more recent one left the entire estate to one child and disinherited the other two
• Carroll stated that Helen told her she didn’t want to make a new will but said “I had no choice,” saying Glenn told her she had to
• Cathy said that on the day Helen died, Glenn said to her, “you’re going to be surprised [with] what’s in the new will. I have everything.”
• Brantley sent a letter “To Whom It May Concern” expressing concerns over the way Helen had changed, especially around Glenn, the day after Glenn applied for probate of the 2013 will

Isolation and restricted visitation

• Brantley, Carroll, Cathy, and Belinda all testified that Glenn restricted Helen’s communication and visitation. Helen stopped calling them, rarely answered the phone herself when they called her, and seemed “very hesitant” to talk once Glenn moved in.
• Brantley said he asked Helen to call Cathy because she was scheduled to have surgery soon, but Helen told Brantley that she’d have to ask Glenn, because Glenn didn’t like her talking to Cathy
• Brantley said that in a conversation about having Cathy and Belinda help with their mother’s care, Glenn told him he didn’t want his sisters at the house
• Brantley visited after Arden’s death and found Glenn had made the downstairs living room into his bedroom and had installed a video surveillance system with cameras all over the property
• Carroll said Glenn wouldn’t let her speak to Helen if he answered the phone when she called
• Carroll said Helen told her she couldn’t talk on the phone the way she could before her husband died
• Carroll said Helen told her she wanted to visit her sister in Georgia but Glenn wouldn’t take her (Helen was apparently wheelchair-bound and relied on Glenn for transportation)
• Belinda stated Glenn never told her about her father’s failing health, and that’s when she first started noticing a change in communication with her parents
• Belinda stated she received a forceful email from Glenn saying that nothing would be signed or initialized without him looking at it after she put her name and her sister’s name on the hospital visitation list when their father was sick
• Belinda went to her parents’ house after her father’s death to get the death certificate, which Glenn had put it in a plastic bag and hung it from the front door. When she knocked to come in, Glenn told her she couldn’t see their mother and after arguing, Glenn threatened to call the police on her. Cathy remembered this incident, too.
• Cathy said Glenn threatened to have her arrested for harassment if she went to see Helen
• Cathy had keys to her mother’s house that she used to get in until Glenn changed the locks and told Cathy she wasn’t welcome anymore unless he was present
• Cathy tried to call her mother several times but stated Glenn would answer, tell her she wasn’t allowed to talk to her, “laugh[,] and hang up”

One or even a few of these would likely not rise to the level of undue influence. But with all of the testimony taken together, which collectively shows a pattern of behavior on the part of Glenn with respect to his mother, the SC Court of Appeals found there was enough evidence to support undue influence and affirmed the circuit court’s decision.

It’s worth noting that the court did find evidence of a fiduciary relationship between Glenn and Helen – he had power of attorney and added his name to his mother’s bank accounts after his father died – but ultimately determined that Glenn presented evidence to rebut the presumption of undue influence on these grounds.

Help with Wills, Trusts, and Estate Planning in South Carolina

A last will is one of the most important legal documents you will ever sign. This is especially true if you have a large estate and/or a complex family situation. There are things you can do when creating your estate plan to make it as solid as possible and reduce the chances of lawsuits over your estate in the future.

For help creating or amending your estate plan, call estate planning attorney Gem McDowell of the Gem McDowell Law Group. He and his associates have helped many families create the wills, trusts, powers of attorney, and other documents they need for peace of mind. Call him at his Mt. Pleasant office at 843-284-1021 today to schedule a free consultation.