What the Law Requires and What Your Options Are
I’ll explain.
Look, I know thinking about 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 alive.
However, a properly drafted and signed Will is really, really important for those you love because you will have made clear your intention about your estate; for example, who gets what, whether it is the house, investments, or even your jewelry passed down from generation to generation. The worst thing is not to have a Will or to have a Will that is either unclear about your intentions or does not meet the statutory requirements of New Jersey law. Having no Will or a defective Will 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 what language to use or how to make your intentions clear, the law is very precise about what needs to exist to have your Will probated, and the consequences to your Estate should these formalities not be followed.
A Checklist to Consider With Your Last Will & Testament
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The Formalities
So, what needs to be done to make your Will valid and capable of a simple probate? In New Jersey, there are three basic requirements for a Will to be valid. 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 preparing a Will (assuming the person can 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 provide neutral witnesses who observe the client sign the document and then sign as witnesses, declaring that the client was (to the best of their observation and hearing) competent on 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 of us 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 its maker on the day the Will was/is executed. It gives you that extra peace of mind, knowing your Will can be admitted to probate without a lot of hassle or expense. 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 understood its contents, and declare that page to be a part of your Last Will and Testament should any 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 set a heightened standard for proving that a document is a holographic Will that should be admitted to probate. Under the law, you need to show that the signature and material portions of the document 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 of his/her estate.
In two separate court cases, each testator met with their attorney to have a Will done, and died before they had the opportunity to review and sign the final draft of the Will. The court held (in both cases) that there was no evidence of any specific intent by either person to make the Will their Last Will and Testament, despite the attorney’s notes detailing what each wanted to do with their property. Critical to the decision was the decedent’s lack of opportunity 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, from which he later died. It was never signed or executed, so it was not a formal Will, but the lawyer knew its contents 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
Oftentimes, 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 create and make changes to who gets items of “personal property” (i.e., jewelry, an antique car, etc.) 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 yourself 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 legal formalities to make it valid and self-proving. If there is a written codicil, it needs to be clear that this writing is intended to change the Will. In a reported case, an NJ court held that a holographic codicil to a Will is valid if it specifically (or by clear implication) refers to the Will it amends or is attached to. 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 can be grounds to reject a purported codicil from probate.
Challenging a Will: Undue Influence
Even if a Will has followed legal formalities and is self-proving through a notary, probate 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 estate than what he or she would have gotten under the older Will. Oftentimes, this Will may have been created fraudulently. The testator was subject to the influence of another person, who coerced him or her into executing a new Will giving property to that person. This is called undue influence, and if the court finds it occurred, the challenged Will is rejected and either an older pre-existing Will is probated, or, if there is no other version of the Will, 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 the creation of 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 the change or rewriting of a new Will, a presumption of undue influence is created. The beneficiary of the Will must then prove that his or her actions 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 the new Will, and why so much property was 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 minimum mental capacity to create a Will. This claim is even tougher to prove 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 at least 18 years of age. Second, as the challenger, you need to prove that the testator did not know, or did not understand the nature and extent of his or her property, and to whom the property was to go upon death. Again, this is difficult to establish because you need to show some sort of mental incapacity. A lot of times, a 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 caused that person to have an inadequate understanding of where his or her property will go upon death.
Under What Conditions Can a Spouse Be Disinherited in Your Last Will and Testament?
Normally, the executor or executrix of an estate must follow the terms of the Will in order to distribute the property to named beneficiaries. But what if the Will disinherits the spouse and gives the estate property to the testator’s children directly (or in trust), or 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 rationale for this law is to protect the spouse’s financial welfare. 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 spouse die without a Will, our intestacy laws provide that if the other spouse is living, he or she is entitled to 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. It’s called an elective share right.
Like many provisions in estate law, rights can be expressly waived. A right to an elective share can be expressly waived by a spouse under N.J.S.A. §3B:8-10, provided the spouse has been informed of the consequences. But there needs to be a signed agreement between spouses stating that one spouse is waiving “all rights” to the estate 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 concerns spouses who are no longer together. The first exception is when the spouses are living separately and apart in different dwellings. If the spouses have been living apart for a while but have not yet divorced, the remaining spouse cannot assert a right to a share of the estate. Since the goal of the elective share law is to provide for the other spouse, spouses who are living separately are taking care of themselves. Therefore, the law does not compensate a separated spouse.
The next situation is if a judgment of divorce (or a pending divorce) is 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 fluid. 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.” There is not much case law on this situation. Living separately is certainly a ground for a divorce action. The Appellate Division of our courts has 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. 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.
Fredrick P. Niemann Esq.
Ready to create your Last Will? If so, call our office today. Ask for Mr. Niemann to personally discuss your questions and individual situation at (732) 863-9900 or e-mail him at fniemann@hnlawfirm.com.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Last Will Attorney