Last Will and Testament

Author: Wolfe Ossa LawCategories: Elder Law

Laws around Wills

Testator Requirements

New Jersey law states that:

Any individual 18 or more years of age who is of sound mind may make a will and may appoint a testamentary guardian. N.J.S.A. 3B:3-1.

Sound mind generally means that you’re aware of your actions when creating the will. More specifically, it means that at the time the will is made, you understand that you’re creating a will, the nature of the property you own, and to whom you’re leaving your property. Even a person with dementia or Alzheimer’s may be deemed to have a sound mind, if lucid at the moment of signing. If a testator believes there might be any doubt as to his or her mental capacity at the time of the signing, a letter from a doctor affirming mental competence generally can be included with the will.

Will Requirements

Regarding the will itself, the standard requirements are set forth in N.J.S.A. 3B:3-2.

The law says:

A will shall be:

(1) in writing;

(2) signed by the testator 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, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.

Although there are various exceptions and special rules, these are the standard requirements for New Jersey wills.

In addition, New Jersey allows a will to be made without witnesses if it is written by hand by the testator and signed at the end. N.J.S.A. 3B:3-2. This is called a “holographic will”. Holographic wills offer some convenience, but they come with the risk of making mistakes that could leave a will invalid.

Notary

You should have your will notarized. Under New Jersey law, a will that meets certain requirements — including proper notarization — is “self proved”. N.J.S.A. 3B:3-4. A self proved will can be admitted to probate court without the testimony of the witnesses to the will. (When a will that isn’t self proved is submitted to the probate court, the court will require testimony from witnesses, or other proof, to establish that the will is what it claims to be.)

How does it work? To make a will self-proved in New Jersey, the testator and witnesses must sign a “self proving affidavit” before a notary public. An affidavit is a sworn statement, and a notary public is an officer of the court. Therefore, an affidavit before a notary public is like making a statement in court. So, when an affidavit states that the will was properly executed, it’s as good as in-court testimony, and the witnesses don’t need to show up when it’s time for the will to be admitted to court. N.J.S.A. 3B:3-4.

By the time a will is submitted to a court, it can be difficult to find witnesses and bring them all to court — not to mention the legal costs. So you should definitely make your will self proved to help your loved ones avoid this hassle.

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