There’s a reason it’s called a “Last” Will and Testament

For centuries, people have been writing or signing Wills to declare what was to be done with their worldly goods upon their demise. Formally, this document has been called a “Last Will and Testament.” A person who has  “testamentary capacity” can write down or dictate their instructions, review the document, sign the document in the presence of two witnesses, and by doing that, can memorialize these instructions as a binding legal document. A person who is “competent” can sign a Will (N.J.S.A. 3B:3-1) even on their deathbed. The presumption is that the last Will that was signed revokes all prior Wills. I have had many clients over the year who came back to see me repeatedly to change their Will to reflect their latest wishes. This is why it’s called the “Last Will.”

When a nonconforming document is all there is, the litigation will be interesting for the attorneys, but  certainly can be costly to the estate.

Over the last 10 years an array of cases have occurred in New Jersey involving purported “Wills” that lacked the formal elements to be probated (N.J.S.A. 3B:3-2) as a binding legal document. The elements have been (1) a writing, (2) the individual  signed the document, and by doing so is presumed to have had an opportunity to review it before signing, (3) the individual signed it in the presence of two  witnesses (or acknowledged it, for instance if the person is blind or physically unable to sign) and (4) the document is an original. If the original is lost, one can go to court and petition to admit a copy of the signed lost Will to probate. However, if either of the first two necessary elements is missing,  the document may be a “writing intended as a Will” (N.J.S.A. 3B:3-3)or it may just be a writing (which doesn’t create a “Will”).

Initially in these cases involving writings, an actual signature of some kind was required. But cases have come up such as the one where a man typed a Will on his computer but died before printing and signing it. Or a person told their lawyer what they wanted, the lawyer prepared a draft, but there’s no evidence that the person ever actually reviewed it or confirmed that it accurately reflected their final decisions.  Or a piece of paper was found in a safe deposit box in the deceased person’s handwriting, providing some instructions about an item in the box, which either supplemented or contradicted the language of the Will.

Fundamentally, these writings can only be substituted for a formally completed Will if the court is satisfied by clear and convincing evidence that the document was created by or authorized by the individual and was actually reviewed by them, even in cases where there isn’t a signature. And we haven’t gotten to the point where an oral statement is treated as a “writing” that creates or revokes a Will.

So much can go wrong when a “Will” is informally prepared. Considering the importance of the task, following the formalities can prevent expensive headaches later.

Call us to prepare or update your Will, trust and estate plan … 732-382-6070.

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