New Jersey Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – New Jersey

Note:    This summary is not intended to be an all inclusive discussion of the law of wills in New Jersey, but does contain basic and other information.  This summary does not include a discussion of hand written wills.

Persons competent to make a will: Any person 18 or more years of age who is of sound mind may make a will. 3B:3-1.

Formal execution of will:

a. A will shall be in writing, signed by the testator, and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.

b. A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

c. Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator’s handwriting. 3B:3-2.

Who may witness a will: Any person generally competent to be a witness may act as  a witness to a will and to testify concerning the execution thereof. 3B:3-7.

Will, not invalidated if signed by interested witness: A will or any provision thereof is not invalid because the will is signed by an interested witness. 3B:3-8.

Laws determining valid execution of will: A written will is validly executed if executed in compliance with New Jersey law, or its execution was in compliance with the law of the place where it was executed, or with the law of the place where at the time of execution or at the time of death the testator was domiciled, had a place of abode or was a national. 3B:3-9.

Incorporation by reference: Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. 3B:3-10.

Identifying devise of tangible personal property by separate writing: A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be either in the handwriting of the testator or be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will. 3B:3-11.

Revocation by acts of testator:

A will or any part thereof is revoked:

a. By the execution of a subsequent will that revokes the previous will or part expressly or by inconsistency; or

b. By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.

(1) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

(2) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.

(3) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent. 3B:3-13.

Revocation by divorce or annulment; revival by remarriage to former spouse:

a. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment:

(1) revokes any revocable:

(a) dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse;

(b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual’s former spouse, or on a relative of the divorced individual’s former spouse; and

(c) nomination in a governing instrument of a divorced individual’s former spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative capacity; and

(2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common.

In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If provisions are revoked solely by this section, they are revived by the divorced individual’s remarriage to the former spouse or by the revocation, suspension or nullification of the divorce or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance.

A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

b. For purposes of this section: (1) “divorce or annulment” means any divorce or annulment, or other dissolution or declaration of invalidity of a marriage including a judgment of divorce from bed and board; (2) “governing instrument” means a governing instrument executed by the divorced individual before the divorce or annulment; (3) “divorced individual “includes an individual whose marriage has been annulled; and (4) “relative of the divorced individual’s former spouse” means an individual who is related to the divorced individual’s former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.

c. This section does not affect the rights of any person who purchases property from a former spouse for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse was not entitled to under this section, but the former spouse is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section.

d. A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section. 3B:3-14.

Inside New Jersey Last Will and Testament Law