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Let’s Get to Writing Your Will Before Your Passing.  Here’s What the Law Requires.

Having a Last Will prepared can be emotionally tough. It is certainly difficult to think about the finality of life and that one day, you will no longer be on this earth.  However, a properly executed will is really, really important for those you love because you will have made clear to them about your estate, who gets what, whether it is the house, investments, even your jewelry passed down from generation to generation.  The worst thing is not to have a Will or have a Will that is either unclear about your intentions or does not meet the formalities under New Jersey law.  Such defects can lead to significant litigation down the road between your Estate and your beneficiaries who start fighting over who gets what.  While the law does not mandate how to make your intentions clear, the law is very clear on what needs to exist to have your will properly executed, and the consequences to your Estate should these formalities not be followed.

A Checklist For Your NJ Last Will & Testament

The Formalities

So, what needs to be done to make a will valid?  In New Jersey, there are three basic requirements to make a will legal.  The will needs to be in writing [signed by the testator or in the testator’s name by some other individual in the testator’s presence and at the testator’s direction] and signed by at least two individuals, each of whom sign the document within a reasonable time after each has witnessed either the signing of the will or the testator’s acknowledgment of signing the will.  One of the procedures we follow in my office when we prepare a will (assuming the person is able to get to our office, otherwise we go to them) is to hold a “signature session”. We do this because we are now formally executing the will in a way that makes it compliant with the law.  We have witnesses who are neutral parties to the will come in and watch the client sign the document and then they sign off as witnesses, declaring that the client was (to the best of their observation) competent the day he or she signed his/her will and understood what he or she was signing.

In addition to the statutory formalities of executing a will, there are a couple of other things we do at Hanlon Niemann & Wright that you can expect should you have us prepare your Last Will and Testament.  One of the first things we do is make the will self-proving through notarization.  A notarized will, unless it is contested, can be admitted to probate without testimony being taken from the witnesses as to the mental capacity of the testator the day the will was/is executed.  It gives you that extra peace of mind knowing that your will can be admitted to probate without a lot of hassle or expenses.  Another thing we have you do is sign and date each page of your will.  Why do we do this?  In case there ever is a fight over the will, your signature on each page acknowledges you have read the page and understand its contents and declare that page to be a part of your Last Will and Testament should all of the pages of the document become separated.

Holographic Wills and Other Writings Intended to Be a Last Will

Suppose you have a document that doesn’t meet all the formalities I described above, but still declares that it is your Last Will and Testament.  Can it be admitted to probate as a holographic will?  The short answer is yes, but it may (will) take more effort to prove that it is your actual Last Will and Testament.  That is because the Legislature has a heightened standard to prove that a document is actually a holographic will that should be admitted to probate.  Under the law, you need to show that the signature and material portions of the will are in the testator’s handwriting.  You then need to establish that the document was intended to be the Last Will and Testament of the person by clear and convincing evidence.  That is, you have to convince a court that it is substantially more likely than not that the document was intended to be the Last Will and Testament of the decedent.

Intent can be tough to prove.  Remember, the testator is dead and can’t testify about their intentions.  As a result, a court has to figure out what his or her intent was when disposing property.  In two separate legal cases, both testators met with attorneys to have wills done, and died before they had the opportunity to review and sign the final draft of the will.  The court held (in both cases) there was no evidence that there was any specific intent that either person wanted the will to be his or her Last Will and Testament, even with the notes from the attorney detailing what each wanted to do with their property.  Critical to the decision was the lack of opportunity by the decedent to review the will before executing it.  Had that happened, the cases might have had a much different outcome.  In contrast, in another case, an attorney prepared a will for himself right before he had surgery, which he later died from.  It was never signed nor executed, so it was not a formal will, but the lawyer knew the contents his will and where his property would go.  The court held there was clear and convincing evidence that the unexecuted document was reviewed and approved by the decedent because he (repeatedly) orally acknowledged and confirmed its contents to those closest to him.

Changing a Will: It’s Called a “Codicil” and Here’s How it Works

Often times, people need or want to change their Last Will and Testament to reflect a change in their thinking and/or intent.  To minimize the amount of times you need to come back to change or redraft a part(s) of a will when personal property is involved, we will state within the will itself that you can make changes to who gets items of “personal property” (i.e. jewelry, an antique case for example) by way of a separate writing.  This way, you don’t need to waste time asking us to prepare a codicil to change who gets the television set or fine china and silver tea set.  You can make the change on your own with a sheet of paper.  We make clear in the will that these sheets of paper are for this purpose, and it is perfectly acceptable under state law.

But what if you need to make a big change to your will, such as disinheriting somebody or changing who gets what?  You need to then execute a codicil to the will.  The law for executing a codicil to your will is the same as executing the original will.  You need to adhere to the formalities to make it valid and self-proving.  If there is a written codicil, clear and convincing evidence must be shown that this writing intended to change the will.  In a reported case, a NJ court held that a holographic codicil to a will is valid if it specifically (or by clear implication) refers to the will it is amending, or it is attached to it.  A codicil is (in effect) republishing the original will subject to the changes the codicil is making, and failure to mention the original will or attach the original will that is being amended is grounds to reject a purported codicil from probate.

Challenging a Will: Undue Influence

Even if a will has followed all of the formalities and is made self-proving through a notary, the probate of it can be challenged in court.  That’s because there are many cases where a will was created at the behest of a child or close friend that gives him or her a larger portion of the property than what they would have gotten under the older will.  Often times, this will was created due to fraudulent means.  The testator labored under the influence of another, who coerced him or her to execute a new will giving property to this person.  This is called undue influence, and if the court finds this to have happened, the challenged will is rejected and either an older pre-existing will is probated, or if there is no other version of the will, then the estate is distributed under our default intestate laws which govern the distribution of property.  To learn more about the laws of intestacy (CLICK HERE)

Proving undue influence is no small feat.  Normally, to show undue influence, you need clear and convincing evidence that a fraud occurred which led to this will.  However, if a challenger to a will can prove that a confidential relationship existed between the decedent and the person who benefits from the will, and that there are suspicious circumstances between the two that lead to this will, a presumption of undue influence is created.  The beneficiary of the will then has to prove why his or her position did not unduly influence the testator.  It is a very fact-specific analysis, requiring a court to look at the relationship between the beneficiary and the decedent, what led to the execution of this new will, and why so much property was being given to this person.

Challenging a Will: Lack of Capacity

The other claim you can make against a will is that it was signed when the testator lacked the proper mental health to create a will.  This claim is even tougher than undue influence because the law presumes the decedent was mentally competent at the time of execution of a will.   To be mentally competent to execute a will, you need to show certain elements.  First, the testator must be eighteen years of age or older.  Second, as the challenger, you need to prove that the testator did not know, or did not understand nature and extent of his or her property and to whom and where the property was to go upon death.  Again, this is difficult because you need to show some sort of mental incapacity.  A lot of times, the lack of capacity claim will work with an undue influence claim because the argument is made that the undue influence of a strong personality over a weak-minded individual causes that person to have inadequate understanding as to where his or her property will go upon death.

The Elective Share: Under What Conditions Can a Spouse Be Disinherited in Your Last Will and Testament?

Normally, the executor or executrix must follow the terms of the will in order to properly distribute the property to named beneficiaries. But what if the will disinherits the spouse of the decedent and gives estate property to their children directly or in trust, or the estate goes to the testator’s favorite charity, etc.?  Under N.J.S.A. §3B:8-1, a spouse has the right to challenge the will of his/her deceased spouse and claim a one-third share.  The reasoning behind this law is to protect the financial welfare of the spouse.  If one spouse is the breadwinner of the family, while the other spouse provides personal services for the family, there would be a catastrophic change in the lifestyle of the spouse who is homebound should the breadwinner of the family suddenly die and not provide for the other’s support in his/her will.  Should one die without a will, our intestacy laws provide that if the other spouse is living, he or she is entitled to at least a portion of the estate.  The right of a spouse to inherit a portion of the property is a right given to the surviving spouse.

Like many provisions in estate law, rights can be expressly waived.  A right to an elective share can be expressly waived by a spouse per N.J.S.A. §3B:8-10, provided the spouse has been told the consequences of doing this.  But there needs to be a separate signed agreement saying that the spouse is waiving “all rights” to the estate that he or she may have.  The document cannot just say in the testator’s will that the spouse has given up his or her right to an elective share.

There are also three situations provided for in N.J.S.A. §3B:8-1 that state when a spouse cannot make an elective share.  Each exception revolves around spouses no longer being together.  The first exception is when the spouses are living separate and apart in different dwellings.  If the spouses have been living apart for a while, but have not divorced yet, the remaining spouse cannot assert rights to a share of the estate.  Since the goal of the elective share is to provide for the other spouse, spouses that are living separately are taking care of themselves.  Therefore, the law does not compensate a separated spouse.

The next situation is if there is a judgment of divorce (or pending divorce) entered between the couple.  This one is self-explanatory.  If the couple is no longer married, an elective share is impossible.

The third situation is a fluid one.  It provides that an elective share is inappropriate under “circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death.”  Not much case law exists here to describe this situation.  Living separately is certainly a reason to give rise to a cause of action for divorce.  The Appellate Division of our court upheld a trial court judgment denying a widowed spouse a share in the estate because the couple was going through divorce proceedings.  Since the couple was going to divorce anyway, when the spouse died before a divorce judgment was entered, the survivor had no right to assert a claim against her dead husband’s estate.

Fredrick P. Niemann Esq.

Should none of these prohibitions apply in your case, a spouse may be entitled to a 1/3 elective share in his/her spouse’s estate.

Ready to create your Last Will? If so, call our office today. Ask for Mr. Niemann to personally discuss your questions and individual situation toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.




Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Last Wills Attorney