While everyone knows they need to execute a last will and testament, they often put it off owing to concerns about money or the inability to find time in their busy schedules. Indeed, even those with plenty of money and time on their hands may nevertheless prove hesitant to address this topic owing to their discomfort with the topic of death and dying.
While this is understandable, it's important for people to realize that a last will and testament can ensure that it will be them, not the State of New Jersey, who decides 1) how their hard-earned assets will be divided, 2) who will oversee their estate and 3) who will look after their minor children.
It's also important for people to understand that when a last will and testament is not executed properly, meaning in accordance with the requirements set forth under state law, it may be contested by loved ones.
What are the requirements that must be met in order for a last will and testament to be considered valid in New Jersey?
A last will and testament may be executed by anyone 18 and older, and of sound mind. In addition, the document must be in writing, and signed by either the testator (i.e., the will's creator), or in the testator's name by another person at their direction and in their conscious presence.
What does it mean to be “of sound mind?”
The requirement that a person executing a last will and testament be of sound mind means that he or she must be able to understand the meaning and purpose of the document, as well as the nature and extent of their assets.
By way of example, it could be argued that a person suffering from dementia would be unable to appreciate the entirety of their assets and, as such, lacking the mental capacity needed to execute a valid last will and testament.
What about witnesses?
State law dictates that a last will and testament must be signed by two witnesses within a reasonable time after each party having witnessed the signing of the document by the testator, or another at his or her direction.
We'll continue this discussion in future posts …
In the meantime, if you have concerns that a loved one's last will and testament was improperly executed, consider speaking with a skilled legal professional to learn more about your rights and your options.