You might have seen an old movie where the opening scene is a room full of people viewing a videotaped message by the deceased in which he tells his last wishes. It has a great entertainment effect, but that is not what usually happens in the real world.
Believe it or not, there are legal requirements that govern how a will should be created and what particular information must be contained in the will in order for it to pass easily through the probate court.
In New Jersey, the statute that governs wills is NJSA 3B:3-2. According to the statute, the will must be in writing, signed by the testator (the person writing the will), and signed by two witnesses who have no personal interest in the will. In other words, these two witnesses cannot be named in the will. The testator must be of sound mind and have the intention of making the writing a last will and testament. Although not specifically stated in the statute, the testator should be at least 18 years of age or older and the will should be notarized.
If you follow these instructions, the will is legal in New Jersey and can pass through probate easily. If you don’t live in New Jersey, check the statute on writing a valid will in your state of residence.
But, there are other alternatives in New Jersey when circumstances require a different way of legally executing your will and these alternatives are provided in the statute as well.
For example, if the testator is incapacitated in some way and unable to physically sign the will, someone else may sign it in the conscious presence of the testator and at the testator’s direction.
Similarly, if one or both of the witnesses did not sign at the initial signing of the will by the testator, they may sign the will within a reasonable time later on as long as they either actually witnessed the testator signing the will or the testator acknowledges the witnesses’ signatures.
But, what about that old recluse who doesn’t trust anybody and doesn’t want anyone knowing anything, especially a lawyer. That recluse might write some instructions down on a piece of paper with no signature and no witnesses’ signatures. Is it a valid will?
Well, yes it could be. If some heirs or old acquaintances should happen to appear and they recognize the handwriting and can authenticate it, the writing would be considered a valid will. The handwriting most likely could be matched against some other papers in the house that might have a signature of the deceased on them, which would make it easier to prove.
Nonetheless, this kind of will would take longer to pass through the probate court because additional evidence would be required to prove its authenticity. In addition, the judge would have to determine that the writing was intended to be a last will and testament, which requires the judge to make certain assumptions based on what was written.
There are other circumstances that could affect the authenticity of a will or that could cause someone to contest the will. Whenever there is any doubt, the issues must be presented to the probate court in a formal hearing and evidence must be submitted.
In order to avoid putting loved ones through lengthy court proceedings, make your wishes known in a valid, legal will.
Information contained in this article is not intended to be legal advice nor applicable to all situations. For legal assistance, contact an attorney in your state of residence. You can visit Arleen’s website at arleenrichards-law.info.
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