By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate and Probate Attorney
Can a handwritten document qualify as a Last Will? Is it legal and enforceable? N.J.S.A. 3B:3 says that a holographic will can be valid and enforceable in New Jersey – and can be admitted to probate – if the signature and other significant provisions of the document are in the hand writing of the testator (a testator is the person who signs a will and last testament). A holographic Will or Codicil does not have to be witnessed – and a will that is not witnessed, is often also classified as a “holographic will.” Much of this is derived from contract law, under a concept known as the Statute of Frauds. Basically, the statute of frauds is a legal requirement that certain kinds of contracts be in writing and signed by the party or parties to whom the contract relates to. This requirement is intended to more reliably guarantee the authenticity of a contract – that indeed party X or party Y did sign the document.
In a New Jersey case entitled “Will of Ferree”, a man died and those in charge of his estate discovered a holographic will in his room. It was a pre-printed will template, with some of the provisions written in his handwriting. The court was unsure how to treat this document, since only one person witnessed the signature of the will. The legal standard in N.J. is for two (2) people to sign as witnesses for a traditional executed will. The court applied what is known as the “surplus/age theory.” In short, what this means is that in the absence of compliance with traditional requirements to probate a will, in cases involving a holographic will (like this one) where only one person witnessed the signing of the document, the court can only probate the handwritten portions of the will. However in this case, the only handwritten information included his personal, identifying information, like his address, name, and the names and addresses of people that the decedent identified. The court ruled that the remainder of the will was not allowed to be probated because the document was a meaningless mess of terms. For that reason the holographic will was not probated.
The lesson to take away? Use a trusted wills, trusts, and estates lawyer to ensure that this won’t happen to you upon death. Ensure that your loved ones will receive what you intended for them to receive.
To discuss your NJ Estate and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.