By: Justin M. Smigelsky, Esq.
The drafting and execution of a Will is extremely technical and should
not be undertaken by a layperson without legal assistance. Although numerous forms
of fill-in-the-blank and do-it-yourself Will kits can be found with a few
clicks of your mouse, you should never draft a Last Will and Testament without
the assistance of an experienced attorney.
Pursuant
to statute, every Will must be in writing, signed by the testator or testatrix–
or by some other person in his or her presence and at his or her direction –
and signed by at least two witnesses to either the signing or the testator’s
acknowledgment of the signature or the Will. If a document is not executed in
compliance with these requirements, the document
may still be valid if the proponent of the document establishes by clear and
convincing evidence that the decedent intended the document to constitute his or
her Will. A handwritten (or holographic) Will may be valid if it is intended to
be a Will and the signature and material portions of the document are in the
testator's or testatrix’s handwriting.
New Jersey case law is rife with examples of what can wrong when
a testator attempts to draft his own Will. Although the New Jersey Wills Act
recognizes holographic Wills as valid, whether witnessed or not, testamentary
intent of the holographic Will must be demonstrated by the proponent. The
proponent of the holographic Will bears the burden of producing evidence of
testamentary intent – a holographic writing prepared without testamentary
intent will not be admitted to probate merely because it represents the
probable intent of the drafter. Furthermore, even if the holographic Will is
admitted to probate, the drafter has most likely created ambiguity or failed to
include certain important provisions which will have unanticipated consequences
on his or her estate.
In a 2003, the Chancery Division of Monmouth County tackled the
issue of whether the completion of a pre-printed form resulted in the creation
of a valid holographic Will acceptable for probate. According to the Court, the
Wills Act requires only the testator’s or testatrix’s handwritten words be
considered and those words must be intelligible apart from the words that are
not in the testator’s or testatrix’s handwriting; accordingly, by striking the
pre-printed portions of the Will, the purported holographic Will was without
meaning and, thus, invalid.
In
sum, although it is possible that a self-drafted Last Will and Testament will
be admitted to probate, there are far too many problems that could arise if the
Will is not properly prepared and executed. The disposition of your estate is
far too important to jeopardize by not seeking the assistance of an experienced
attorney.
Because
estate planning, administration, and litigation require specialized knowledge,
you may wish to consult with an experienced attorney if you are planning your
estate, or the fiduciary or beneficiary of an estate or trust. Specifically,
you may wish to contact an attorney if you have questions regarding the probate
process, administration of an estate or trust, fiduciary obligations,
preparation of a formal or informal accounting, refunding bonds and releases,
and the procedures for filing a formal accounting or exceptions thereto. This
article is for information purposes only, and is neither legal advice nor the
creation of an attorney client relationship.
