Most of the time there are no real surprises in the Will left behind by a loved one who recently passed away. In fact, it is not uncommon for the decedent to have discussed the terms of the Will with loved ones prior to his/her death. What happens though if the decedent made a death bed Will at the last minute that changed those terms? Is that Will valid? An attorney at Augulis Law Firm discusses the validity of a deathbed Will in New Jersey.
What Is a “Deathbed” Will?
Ideally, a Last Will and Testament is created with the assistance of an experienced estate planning attorney and only after sufficient thought and contemplation. That Will is then formally executed at the attorney’s office in the presence of disinterested witnesses. These formalities help to prevent challenges to the Will when it comes time to probate the Will. Occasionally, however, a Testator makes what is referred to as a “deathbed” Will.
As the name implies, a deathbed Will refers to a Will that is written down and executed (or spoken in the case of an oral Will) when the Testator knows that death is imminent. Sometimes an individual has simply put off creating a Will and a death bed Will serves as the only Will ever created by the Testator. Other times, however, a deathbed Will purports to revoke a previously executed Will.
Either way, a deathbed Will is ripe for challenges given the circumstances under which it was created. If the Will revokes a previous Will the odds of a challenge increase dramatically because the new Will almost inevitably disinherits someone unexpectedly and/or gifts distributes the Testator’s estate to previously unnamed beneficiaries.
Is a Deathbed Will Valid?
Whether a deathbed Will can ever be valid depends on the laws of the state in which the Will was executed. In New Jersey, for a Will to be legal the Testator must be at least 18 years old and of sound mind, the Will must be in writing, signed by the Testator, and witnessed by two disinterested witnesses. A handwritten Will can be valid if it meets the other requirements. New Jersey does not recognize nuncupative, or oral, Wills.
So in New Jersey, a deathbed Will can be valid if it was reduced to writing and it meets the other requirements. Typically, the issue with a deathbed Will becomes whether or not there are sufficient legal grounds on which to contest the Will. Given the circumstances under which the Will was executed, a contestant may feel that those grounds do exist. In New Jersey, there are only two grounds that can be used to invalid a Will — lack of testamentary capacity and undue influence.
To invalidate a Will based on lack of testamentary capacity a contestant must show that at the time the Will was executed the Testator did not know:
- the nature of his/her acts
- the extent of his/her property
- the proposed disposition of his/her property or
- the natural objects of his/her bounty
Invalidating a Will based on undue influence requires a contestant to show that the Testator was so unduly influenced by another person to the point that the Will ultimately reflected the wishes not of the Testator, but rather, the wishes of the Influencer. Moreover, the Influencer must have been in a confidential relationship with the Testator at the time.
If the Testator was very ill at the time the Will was executed and/or was surrounded by someone who was in a position to influence him/her, it may be possible to successfully challenge a deathbed Will. Because the validity of any Will depends on the facts and circumstances surrounding the execution of the Will, only an experienced probate attorney can review those facts and circumstances and help you decide if the Will in question is likely to be upheld or not.
Contact a Probate Attorney
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about the validity of a deathbed Will, contact an experienced probate attorney at Augulis Law Firm by calling 908-222-8803 to schedule your appointment today.