Level of Capacity With Respect to Wills, Trusts, and Powers of Attorney Under NJ Law

HNWElder Care Law, Elder Law

By Fredrick P. Niemann, Esq. a NJ Elder Law Attorney

Legal Capacity is required for the legal execution of a will and/or a testamentary trust under New Jersey law.

a. What is legal capacity and what does it mean under New Jersey Law? Legal capacity (sometimes called Testamentary Capacity) requires:A person to be at least 18 years old, and
b.  A person who is of sound mind and memory.

So what do these terms mean?  An easy way to establish that a person is of “sound mind and memory,” is to demonstrate that the person who signed their Last Will or trust at the time of his or her signing:

i. Knows that he/she was/is making a will;
ii. He or she knows/knew who their beneficiary is/was;
iii.  He or she comprehends(ed) the character and extent of his/her property; and,
iv.  He or she understands/understood they are/were disposing of his/her property to others according to a plan formed in their mind(s).

The elements required for creating a legally enforceable trust are:

i. The ability to understand, in a reasonable manner, the nature and effect of the act in which he or she is engaged,
ii. That he or she has sufficient mental capacity to understand the trust that he or she executed,
iii. The ability to understand the terms of the trust; however, this does not require “that a person setting up a trust be able to explain every technical term in the instrument.”

Capacity is required for the execution of deeds, and powers of attorney in New Jersey. Contractual capacity differs from that of testamentary capacity.  Recall that testamentary capacity only requires that at the time of signature the creator of the will had the ability to understand the consequences of his/her decision concerning the disposition of his/her property at death.

Contact me personally today to discuss your New Jersey elder law matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.


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