Most people have a general idea of what a last will and testament is—a document that says who-gets-what from the estate of a decedent.
Historically, a “Will” was a document that “devised” the decedent’s real property, for instance, his home. A “testament” was a document that “bequeathed” the decedent’s personal property (such as furnishings, money).
Nowadays, the phrase last will and testament or Will is used to identify a document that passes any of the decedent’s property after his death, both real and personal. Similarly, the words “devise” and “bequest” have become interchangeable and are simply the verb used to identify the passing of property from the decedent to the beneficiary of his estate.
In New Jersey, our Probate Code, which is the series of statutes that govern the administration of estates, only defines the word “devise,” not bequest. A devise is a verb used to describe the act of disposing of real or personal property. While it is common practice in a Will to say “I give, devise, and bequeath,” only the word “devise” is defined in our statutes. Our Probate Code only defines the word “Will,” not testament.
The Supreme Court of New Jersey has held that no document, even a document in the decedent’s own handwriting, can be considered his Will unless the decedent intended the document to be his Will. In other words, in order for a document to be a Will the decedent must have had “testamentary intent” at the time he wrote the document and must not have revoked the document before his death.
In order for testamentary intent to exist, the decedent must have understood who his family was and what his assets were. A person who cannot identify his family members or does not understand what his assets are cannot make a Will because such a person lacks the ability to form testamentary intent.
The decedent must also be able to develop a plan for disposing of his assets. In other words, if the decedent lacked the ability to say who-gets-what in his Will, then the decedent lacked testamentary intent and the document purporting to be his Will is not his Will. The decedent, without the aid of others, must have been able to develop the plan for disposing of his assets as specified in his Will.
In my opinion, the document is called a “Will” because it is an expression of the decedent’s free Will. If someone else told the decedent what to say in his Will, then the document does not represent an expression of the decedent’s free Will. There is a lot of litigation alleging that the decedent was unduly influenced to say something in his Will.
Finally, the decedent must have understood that he was signing his Will at the time he signed the document. If the decedent didn’t understand that he was signing his Will when the document was signed, then the document is not his Will.
As with a claim of undue influence, there is also a lot of litigation claiming that the decedent lacked testamentary capacity when he signed the Will, and therefore, the document is not the Will of the decedent.
A Will is an ineffective document until the decedent dies. During his life, the document that he signed purporting to be his Will is not a Will but a Will-in-waiting. A statute says that a Will is ineffective to transfer property or to nominate an executor until such time as the Will is admitted to probate. Another statute says that a Will cannot be admitted to probate until ten days after the death of the decedent.
An individual can revoke a Will at any time prior to his death. An individual can revoke his Will in several ways. He can revoke it by any act of revocation, for instance, by tearing up the Will, by burning it, or by making a mark on the Will that evidences an intent to revoke the Will. An individual can also revoke an old Will by signing a new Will that indicates an intent to revoke the old Will.
People often avoid estate planning because they assume creating a will is complicated or only necessary for wealthy families. In reality, a well-drafted will can provide clarity, reduce conflict, and make difficult situations easier for the people left behind.