In interpreting how to interpret a will, a testator’s intent “as expressed in his will controls the legal effect of his dispositions, and the rules of interpretation expressed in N.J.S. 3B:3-34 through N.J.S. 3B:3-48 apply unless the probable intention of the testator, as indicated by the will and relevant circumstances, is contrary.” N.J.S.A. §3B:3-33.1. “[I]n ascertaining the subjective intent of the testator, courts will give primary emphasis to his/her 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 and circumstances. Thus, the court’s mandate is to substitute itself in the position of the testator and “accomplish what he/she would have done had he/she ‘envisioned the present inquiry.'” A court should allow “[e]xtrinsic evidence (meaning relevant evidence) which furnishes information regarding the circumstances surrounding the testator” to establish probable intent. This includes looking to the file of the scrivener (scrivener means the lawyer who wrote the will for the client) and the practice of the firm (meaning what is the firm’s general practice when drafting estate planning documents for clients).
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By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate and Probate Litigation Attorney