In New Jersey, drafting a Last Will is guided by statutory requirements and judicial precedent. One aspect of estate planning in New Jersey allows individuals to enter into a contract to make a will or from altering a current will that has been signed by one or more of the parties. This principle incorporates contract law and restrictions upon testamentary freedom, in an effort to assist individuals to plan their estates while greater security that their promises are enforced.
Understanding the Basics of the Legal Principle Known as a Contract to Make a Will
A contract to make a will in New Jersey requires the same elements as any other contractual agreement: offer acceptance, consideration, mutual agreement to essential terms, and a meeting of the minds. Consideration, in particular, is critical; it distinguishes a contractual promise from a mere intention. I discuss the legal term called consideration detailed in my contract law web page, Importance of “Consideration” in an Enforceable NJ Contract (read more here).
Legal Requirements
For such a contract to be enforceable in New Jersey, it must generally be supported by a writing. The New Jersey Statute of Frauds requires that certain agreements, including those related to the creation or modification of wills, be memorialized in writing. This requirement aims to prevent fraudulent claims and provide clear evidence of the decedent’s intentions. However, this requirement also has certain exceptions, especially when there have been detrimental reliance by one party because of the promise made to him or her by the decedent. I discuss this topic further in my Will Contest, Trust and Probate Litigation Attorney in NJ page entitled Contract to Make a Will: Is it Enforceable in NJ (click here).
One major aspect of contracts to make a will is enforcement. Upon the death of the individual who promised to create or modify a will for the benefit of another, the court may be called upon to enforce the contract. If the will reflects the agreed terms and the breach is confirmed, the case is simplified. However, if the will is contrary to the contract or if no will exists, then the aggrieved party can file a breach of contract action to recover what they were promised, typically pursuing that share of the estate equivalent to the share which was promised.
Additional Issues to Address in a Breach of Agreement to Create a Last Will
Several challenges can undermine the enforceability of a contract to make a will. These include ambiguities in language, lack of clear consideration, the legal capacity of a party or parties at the time of contract formation, undue influence, etc. Additionally, public policy considerations may influence whether enforcing the contract is fair and just considering testators should have the freedom to change their wills as personal circumstances and relationships evolve and/or change.
Those considering entering into a contract to make a will in New Jersey should undertake careful planning. Drafting a clear, comprehensive written agreement is crucial ideally with the assistance of an attorney knowledgeable in estate planning. This minimizes the risks of disputes and ensures that the contract accurately reflects the parties’ intentions, thus preserving the testator’s wishes beyond their lifetime.
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 Probate Litigation Attorney