When a Copy or Unsigned Will May Be Good Enough

We all know how important it is to have a will.  Yet, we see one celebrity after another, with substantial estates and who could pay to receive the best advice, die without one.  Until recently, the law viewed the issue as an “either/or” – either you had a validly executed will when you died, or you did not, in which case your assets passed by the laws of intestacy, which were intended to reflect traditional expectations of how a person would want his assets to pass (first to his spouse, then to his children, etc.).

Under current New Jersey law, however, there is an exception to the “either/or” paradigm.  To be valid under New Jersey’s statutes, a will must be in writing, signed by the deceased person, and signed by two other individuals who witnessed the deceased person sign the will.  (And, it must be the original will – see our prior post here.)  The Court can accept a writing that does not satisfy these requirements, however, if it is shown that the deceased person intended the writing to be his will.  This sounds pretty straightforward.  Whether it proves to be so in any given case depends on the facts.

Unlike a “traditional” will, which meets the statutory requirements, a writing intended as a will cannot be admitted to probate by the Surrogate.  Instead, an action has to be filed in Superior Court, on notice to anyone who would be affected if the writing were admitted as a will.  The proponent must show that the deceased person actually reviewed the document and gave his “final assent” to it.  Because the Court is dealing with the alleged actions and intent of a deceased person, the proponent of the document must prove these elements by the more stringent clear and convincing standard, as opposed to the typical, “more probable than not” preponderance of the evidence standard.

Thus, depending on the facts, a document that does not meet the statutory requirements for a will may still be admitted to probate as the deceased person’s valid will.  Of course, no one should rely on this exception as a reason not to take every precaution to ensure that his or her will is executed, and executed according to New Jersey’s statutory requirements.  The application of the exception in any given case is uncertain, and even if it does apply, it entails greater delay and expense than probating a will through the Surrogate.

If a loved one has passed and the only document that can be found is an unsigned will or a will with the original signature cannot be located, you should seek counsel to evaluate your options.