Most people understand the purpose of a last will and testament. A Will is a document the primary purpose of which is to pass a person’s assets to other people or institutions, such as charities, after his death.
Few documents are as personal as a Will. A Will can control all of the assets that a person owns after his death, and it is a document that can shape a person’s legacy, both literally and figuratively.
Given its importance and its ability to control a tremendous amount of wealth, there are certain standards that govern what constitutes a Will and the manner in which a Will must be signed. The following excerpts are taken from my book, New Jersey Elder Law: A Planning and Resource Guide.
Self-Proving Will
A Will that satisfies the requirements of N.J.S.A. 3B:3-2 can be made self-proving if the Will satisfies several other requirements. If a Will is self-proving, the proponent of the Will after the death of the testator does not have to prove the genuineness of the signatures of the testator or the witnesses; the original Will can simply be admitted to probate before the appropriate surrogate without further proof as to its validity or genuineness; this is called submitting a Will to probate in “common form.”
In order to be self-proving, the testator must sign an acknowledgement of the Will and the witnesses must sign affidavits and all of the signatures must be acknowledged before an individual authorized to take oaths, such as a notary public or attorney-at-law. The wording of the testator’s acknowledgement and the affidavits of the witnesses is provided in the self-proving statute. Holographic Will
A holographic Will is an exception to the general requirements of a Will that are discussed immediately above. A holographic Will is a Will the material portions of which are in the testator’s handwriting. In order to be valid, a holographic Will must also be signed by the testator.
Writing Intended to Be a Will
A Will that does not satisfy the requirements of N.J.S.A. 3B:3-2 (either as a “standard will” or a holographic Will) may still be considered a “writing intended to be a Will.” In order to be considered a writing intended to be a Will, the proponent of the document must establish by clear and convincing evidence that the decedent intended the document to constitute his Will.
The case law interpreting the writing intended to be a Will statute is still evolving. A document that the testator failed to sign has been held to be a writing intended to be Will. A photocopy of a letter with notations in the margin may be admitted to probate as a writing intended to be a Will.
Who May Witness a Will?
The basic requirements of a Will are that the signature of the testator or the testator’s acknowledgement of his signature or his acknowledgement of the document as his Will be witnessed by two people. But what are the requirements to be a witness?
The general rule is that any person competent to be a witness may act as a witness to a Will and testify regarding the execution of the Will. Since young children have been held to be competent witnesses, the general requirements of a witness are not very high.
Furthermore, a statute specifically permits an individual who is interested in the Will to be a witness. In other words, one of the beneficiaries of the Will could be a witness to the testator’s signature or his acknowledgement.
Most practitioners would not permit a young child to act as a witness to a Will or someone under the age of eighteen for that matter, though the law does not prohibit using individuals under the age of eighteen. Moreover, experienced practitioners would not use an interested party to be a witness to the Will if there is some expectation that the Will may be challenged.
For instance, it would be perfectly acceptable to use an adult child of the testator as one of the witnesses to the Will if the Will devises everything equally to the all the children. On the other hand, using an interested party to a Will that disinherits one of the testator’s children would not be advisable.
If you are interested in these issues or other legal issues affecting the elderly, then I suggest that you purchase my book, which you can do by contacting the New Jersey Law Journal at 973-642-0075 or contact Doug Brown at dabrown@alm.com.