Understanding the Doctrine of Probable Intent in Probate Estate Litigation

HNWEstate Administration and Probate

Estate Administration ProbateUnder N.J.S.A. 3B:3-33, “the meaning and legal effect of language used in a Last Will, trust or other legal document is determined by the law of the state stated in the will, trust or other governing instrument.

The process of interpreting the meaning of language used in the document begins with the interpretation of the words and groups of words used, considering their objective meanings, their existence within the document, and the probable intention of the testator in selecting those words and phrases.

Generally, the word(s) selection found in a legal document is ordinarily those of the attorney (if one is used) rather than the testator.

Therefore, the court will focus on the subjective intention of the testator evidenced not just by the text of the will alone but primarily, by the testator’s dominant plan and purpose as it appears from the entirety of his/her will when read and considered in the light of the surrounding facts, circumstances, and so far as can be determined, the situation of the deceased testator when he signed the Last Will and/or trust. (N.J.S.A. 3B:3-33).

NJ courts will strain towards effectuating the probable intent of the testator, and, since it is the testator’s intent in a will that is in issue when disputed, generally applicable principles of interpretation control.  The essential endeavor the court will undertake in determining the testator’s probable intent is to put itself in the testator’s position insofar as possible in an effort to effectuate what he or she would have done had he/she envisioned the present dispute.

Sometimes (it’s rare), the court may depart from the literal meaning of words whenever necessary to carry out the intent of the testator as it appears from the entire will.  But again, that is rare.

If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Probate Litigation Attorney

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