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James J. Costello, Jr.
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James J. Costello, Jr.
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What Is A Will?

This may seem like a simple question.  Everyone knows what a Will is.  It’s a legal document that dictates the manner in which a person’s assets are distributed upon death.  But if you are a beneficiary of a Will, that statement greatly oversimplifies what a Will does and does not do, and what, in fact, a Will is.

Wills dispose of assets titled solely in the name of the decedent (the person who died).  That’s it.  They do not control the disposition of assets that pass by beneficiary designation, such as retirement accounts (IRAs, 401(k)’s, annuities, etc.) and life insurance policies. They also do not control assets titled “joint-with-right-of-survivorship” or “pay-on-death.”  The named beneficiary of retirement accounts and life insurance policies receives those assets regardless of the provisions of a Will.  Likewise, the surviving joint owner of an asset held joint-with-right-of-survivorship or the beneficiary of a pay-on-death or transfer-on-death account receives those assets regardless of the provisions of a Will.  So if you are a beneficiary of a Will but all of the decedent’s assets pass outside the Will, you may be out of luck (but more on that in a future blog post).

The requirements of a valid Will are straightforward.  Other than the decedent having had the capacity to make a Will and being free from undue influence (topics addressed in previous blog posts), a Will simply needs to be in writing, signed by the person who made it and two witnesses.   That may seem simple, but what if the Will falls short of those requirements.  Is it valid?  A recent article in the New York Times chronicled a dispute over a valuable piece of New York City real estate, which arose because the Decedent’s Will was witnessed by only one person instead of two.

New Jersey law has trended away from a strict interpretation of what it takes to have a valid Will.  For example, a Will is valid in New Jersey even if it is not witnessed, if the signature and material portions of the document are in the decedent’s handwriting.   Could this include something written on a cocktail napkin and signed before embarking on a fatal journey?  Under the right circumstances, yes.

Even if a document is not properly witnessed or is not in the decedent’s handwriting and signed, it can still be considered a valid Will if it can be proven that the decedent intended to make a Will.  The seminal case in this area involved a woman named Louise Macool.  Ms. Macool went to her lawyer to change her Will.  She provided him with detailed notes of the changes that were to be made.  The lawyer made the changes and printed out a revised Will.  However, Ms. Macool, having left the office to have lunch nearby, unfortunately died within an hour and never reviewed the revisions.

The court found that the Will drafted by the attorney was not valid because Ms. Macool never reviewed it (even though it was based on her notes) and therefore never gave her final assent to it.  However, many cases since Macool have found documents that did not fully comply with the statutory requirements for Wills to nevertheless be valid because it could be proven that the decedent intended that document to be his or her Will.

The lesson to be learned is that New Jersey law is designed to ensure that a decedent’s true intentions are carried out if at all possible.  Keep that in mind if a friend or loved was kind enough to think of you as a beneficiary but perhaps fell short in observing the typical formalities involved with making a Will.

If you have any questions about this post or any other matters, please contact me at jjcostellojr@nmmlaw.com.

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Undue Influence Can Unwind Lifetime Gifts
James J. Costello, Jr.
Member
James J. Costello, Jr.
Visit Profile
Related Posts
Making a Will? Don’t Forget About Funeral Arrangements
When a Copy or Unsigned Will May Be Good Enough
Undue Influence Can Unwind Lifetime Gifts
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