Can you Change a Will without a Writing?

I cannot tell you how many times over the years a client has told me that despite what is written in the Last Will and Testament of their parent or grandparent or Aunt or Uncle, “s/he said that s/he was leaving the house to X,” or “she wanted Y to get more because he moved in and was taking care of her at the end” or “she gave a lot of money to Z and intended him to pay it back from his share of the estate” or “she lent money to X but said the loan was forgiven” or “she left it to J. but told him he had to hold it for K.”   In each of these situations of course, the deceased person never put anything like that into their Last Will and Testament, and never signed a new Will or even a Codicil (formal amendment) to the existing will. Similarly, I also hear expressions of surprise when people read what is actually written in the only Will that was found — “She told everyone she had changed it!!”

Can you change your Will without a writing? New Jersey statutes suggest that the answer is “no.” I was actually aware of a case in court in New Jersey years ago in which the deceased had never changed her signed Will but a family member insisted that it had been revoked by a series of oral statements allegedly expressed to different people. I don’t know how that theory worked out for him. No doubt the litigation cost the estate a great deal of money. Also I litigated a case in which one of the testator’s children claimed that her mother had revoked a Will and Trust by various oral statements. That lawsuit was dismissed on summary judgment.

A Last Will and Testament is a written document that is signed, dated and witnessed. It’s called “Last,” because if there is a presumption that if no writing was signed later on and the document still exists, the deceased person intended it to be the last will and testament. The law presumes that the last document supercedes all prior Wills. In fact, just to be safe, many — perhaps most — Wills expressly say that “this document replaces all prior Wills.”

How can a Will be revoked? There either has to be a writing [signed etc.] that amends or revokes the Will, or there has to be some affirmative and intentional act of revocation. The statute says: “By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.”  Some old cases dealt with accidental destruction by fire, or additional papers found with writing on them that seem to amend a Will but it isn’t quite certain.  New Jersey has a statute concerning documents that don’t meet the specific requirements to be treated as a “Will,” and those documents are referred to as “a writing intended to be a Will.” But there always has to be a “document or writing.” There is a rational reason for these statutes. It is only when there is a writing that was reviewed by and signed by the deceased person that there can be reasonable certainty of what his or her last intentions were. Without a writing, it becomes a battle between interested parties who have a motive to either invent the alleged oral statements or to deny that the claimed statements were ever made (especially if they say that no one else was present when the alleged statements were made). With a writing, it not only speaks for itself, but there is often extrinsic evidence to authenticate the making and signing of the document.

Forewarned is forearmed. If it has been years since your parents reviewed their estate plan documents — or if they never bothered to sign a Will — this would be a good time to remind them to take care of it. Of course, getting your intentions in writing and updating your own plan is always a good idea.

Call us about senior care and estate planning with wills and trusts … 732-382-6070

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