I’ve been seeing it a lot lately: A loved one passes away never having signed a Last Will and Testament (shame!), but among his or her personal effects a handwritten document is found. On the face of this document either some or all of said loved ones possessions are devised.
The good news is, your family may be in luck! New Jersey recognizes two ways for wills that are not executed properly to be probated: 1) as a Holographic Will under N.J.S.A. 3B:3-2(b), or 2) as a Writing Intended as a Will under N.J.S.A. 3B:3-3.
First, what is required for a Last Will and Testament to be executed properly? N.J.S.A. 3B:3-2 spells it out in detail. A will must be: 1) In writing; 2) signed by the testator (deceased person) or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and, 3) signed by at least two individuals (witnesses), each of whom signed within a reasonable time after each witnessed the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgement of the will. In addition, a Last Will and Testament should be made self-proving. The requirements for same are set out in N.J.S.A. 3B:3-4.
Just as a note, before I go into a detailed analysis of handwritten wills, it is important to note that these types of documents are never recommended! While you may think that by doing so you will be avoiding attorney’s fees, handwritten wills, unlike formally executed wills, must be submitted to the Superior Court for review. This process includes an attorney preparing and filing a Verified Complaint seeking to probate the handwritten will for the review of a Judge. Generally speaking, this costs more than an entire estate planning package does (Wills, Powers of Attorney, and Health Care Proxies)! To top it off, there is no guarantee that the Judge will accept the handwritten will.
Now onto the ways to probate a deviant Last Will and Testament:
1) Holographic Will under N.J.S.A. 3B:3-2: When a will does not meet the formalities above, it may still be probated if the signature and material portions of the document are in the testator’s handwriting. You often see this scenario play out in what we call a “Deathbed Will.” In this example, a loved one is one their deathbed and pens a handwritten will and signs it in hopes that it is effectively treated as a Last Will and Testament.
2) Writing Intended as a Will under N.J.S.A.3B:3-3: You see this type of Will when dealing with a handwritten document that does not meet what is carved out as a “Holographic Will” in the statute. For example, a common scenario is where someone handwrites a will but forgets to sign it. Another common scenario is where a lawyer formally prepares a Will, but someone passes away before signing same.
The analysis of a Writing Intended as a Will is far more convoluted than the analysis of a Holographic Will. The statute states that the proponent of the document (person attempting to probate it) must establish by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent’s will, a partial or complete revocation of an old will, an addition to or alteration of the will, or a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will. Court cases have clarified this to mean that there must be a showing of clear and convincing evidence that: 1) the decedent actually reviewed the document in question; 2) the decedent thereafter gave his or her final assent to it; and, 3) the decedent intended the document to serve as his or her will or an addition or alteration thereof.
If a loved one has passed away leaving a handwritten will, it is extremely important that you get legal advice immediately! There have been many cases looking into what qualifies as a Holographic Will or a Writing Intended as a Will, so it is extremely important that you see an attorney who has experience in dealing with same.
The Estate Administration and Probate process is difficult enough without this additional “monkey wrench” thrown into the picture. For a free consult, please call Hynes Law Group at 908-514-8008, or email Jesse at Jesse@Hyneselderlaw.com.